abandonment with an implied refervation of the right of the owner to freight, if earned in the voyage infured. He takes the hip fubject to all the exifting contracts which bound the owner in refpe&t of it at the time of the abandonment. And it was decided in Beale v. Thompson (a) that the hoftile embargo in Ruffia did not put an end to the prior contracts made for that voyage. Then the infurer cannot be in a better fituation after an abandonment than the infured from whom he derives title, who before he abandoned had contracted with the underwriter on freight in a manner to fecure to him eventually the benefit of falvage by the marine law. [Le Blanc J. Is it then contended that the contract of insurance runs with the fhip? Lord Ellenborough C. J. Was it ever heard of that a contract should run with a chattel? Put the cafe of a man purchafing a waggon as it is going on the road laden with goods, he is not bound to carry the goods to their journey's end, though the carrier, the vendor, who contracted fo to do, will be liable on his contract.] The obligation in this cafe arifes from the anomalous nature of the contract. and the permitting of two diftinct fubjects of infurance in refpect of the fame fubject-matter, on which the feveral rights of abandonment and falvage are confequential. The underwriter on fhip, if ftanding at all in the fituation of a purchafer, it at least a purchafer with notice; but in truth he only purchases a right of falvage after an abandonment of the fubject-matter of his infurance; as the underwriter on freight is the purchafer of a right of falvage of the freight abandoned to him. The abandonment of the fhip only confers on the infurer of it a qualified ownership during the voyage infured, an owner. ship fub modo according to the marine law, which recognizes the separate interefts of the owner in fhip and freight, and the confequent separate interefts of the underwriters on each, in cafe of an abandonment. The cafes of Thompson v. Rowcroft (b), and Leatham v. Terry (c', went upon the particular terms of the contract of abandonment, and not on the general queftion. For the defendant it was infifted, that an abandonment to the underwriter on fhip vefts in him the complete property of it with all its confequences. The immediate fubject of the policy is the body or fubftance of the fhip which he infures against actual lofs or deterioration by certain perils, but the insurance (a) 4 East, 546. (b) 4 East, 34. (c) 3 Bof. & Pull. 479. being. againft ABEL. [394] 1804. MCCARTHY and Others against ABEL. being upon a certain voyage, and the indemnity having been extended to another fort of lofs, namely of the voyage infured, in which cafe, though the fubftance of the fhip be fafe, the owner has a right to abandon, it must be followed up with all its confequences, one of which is the benefit of falvage, by which all the intereft in and title to the fhip is from the moment of the abandonment accepted transferred to the underwriter, he paying to the owner the full value at which the property was insured. The underwriter on fhip is not bound to take cognizance of any contract for freight or for infurance of it, to which he is no party. For it would be abfurd to say that after he had purchased the whole property affigned to him for its full value he could not do what he pleafed with his own. If the owner ftood his own [395] infurer of the freight there could be no doubt but that a general abandonment of the fhip, without fpecially referving the freight, would convey all his intereft to the underwriter; and the latter would not be bound to accept a qualified abandonment. But even if fuch underwriter had notice of the exifting contracts of affreightment and infurance, it could not alter his fituation; for the right to accruing freight being in refpect of the property in the ship and the carriage of the goods to their ultimate place of deftination, it must follow fuch property prior to and till the arrival of the goods. It is with good reafon therefore that the laws of France and other countries confider freight as so infeparable in its very nature from the property in the fhip, that they do not admit them to be feparately infured, and this cafe fhews the inconfiftency of the contrary practice. But ftill no collateral contract of the owner with the infurer on freight can abridge the right of property transferred to the underwriter on ship by the abandonment of it to him: and the owner, who has by his own act in making fuch abandonment divefted himself of the title to freight, and put it out of the power of the infurer on freight to avail himself of the benefit of falvage referved to him in the event by his contract, can have no right to recover upon the freight policy under pretence of an abandonment, without benefit of falvage. From the moment of the abandonment accepted by the underwriter on fhip all the expences of repair and risk of the thip are transferred to him, and therefore he must in justice be entitled to derive all the benefit of it; for the benefit of falvage would be merely nominal if, notwithstanding an abandonment to him and his paying the full value of the fhip as for a total total lofs, he were ftill obliged to purfue the voyage infured at his own risk and expence for the benefit of the infured. The benefit of falvage means every thing which remains of the fhip at the time of the abandonment, without further claim of the infured. It is fufficiently hard upon the underwriter on ship to be compelled to pay the whole value of the infurance upon the fuppofition of a total lofs of the voyage, when it turns out that the voyage was not loft; but it is quite inconfiftent with the abandonment, which is the voluntary choice of the affured to deny the eventual ufufruct of the property fo abandoned. If after abandonment, as for the lofs of the voyage, the affured may ftill retain the veffel for the performance of all the contracts which he had previously entered into in respect of the ship, this refervation might extend to feveral voyages; and even the fame voyage may be protracted for two or three years from length of way or cafualties, as fometimes happens with East India ships, during which time the repairs of the fhip might equal her first coft and thus the affured, after receiving the full value of the ship, and deriving intereft from the money, and getting rid of all further expence, would still be receiving the earnings of the fhip, in lieu of the underwriter who had paid the value of it and borne all the expences. In reply it was observed, that some of the charges of profecuting the voyage, such as failors' wages and provifions, would be borne by the underwriters on freight, and not by those on the ship, according to Robertfon v. Ewer (a), and other cafes there cited. And as to other charges it was for the underwriters on ship to confider whether it were worth their while under all the circumftances to profecute the voyage infured after an abandonment. Cur. adv. vult. Lord ELLENBOROUGH C. J. now delivered judgment. The novelty of the queftion in this cafe, the value of the property, and the extent to which fome of the principles laid down in the argument feemed to lead, made the Court defirous of every information on the different points which might arife between the feveral parties interested before we came to our dec fion; and therefore we wished for the fecond argument on the effect of an abandonment of the fhip on the accruing freight. If the queftion which arifes upon this cafe be ftripped of all extraneous cir 1804. MCCARTHY and Others against ABEL. *[396] [ 397 3 1804. and Others against ABEL. cumftances and confiderations, it appears to us to refolve itself into this fingle point; viz. Whether the freight have been in M'CARTHY this cafe lott, or not? If the fact be merely looked at, freight in the events which have happened has not been loft, but has been fully and entirely earned and received by or on the behalf of the plaintiffs the affured: and if fo, no lofs can be properly demandable against the underwriters on freight, who merely infure against the lofs of that particular fubject by the affured. But if it have or can be confidered as having been in any other manner or fenfe loft to the owners of the fhip, it has become fo loft to them, not by means of the perils infured against, but by means of an abandonment of the fhip, which abandonment was the act of the affured themfelves, with which therefore, and the confequences thereof, the underwriters on freight have no concern. It appears to us therefore that quacunque viâ datâ, that is, whether there has been no lofs at all of freight, or being fuch, [398] it has been a lofs only occafioned by the act of the plaintiffs themselves, that they are not entitled to recover; and that therefore a nonfuit muft in that cafe be entered. Judgment of nonfuit. Tuesday, THIS BARING and Others against CHRISTIE. The 25th arHIS was an action of insurance on goods on board the ship ticle of the Mount Vernon, warranted an American hip, upon a voyage treaty of Feb. at and from Philadelphia to London, with liberty to touch at one 1778, between France port in the Channel. It was averred in the declaration, that and America, Meffrs. Willings and Francis, for whom the plaintiffs were which reagents, were the perfons interefted in the goods infured, and quires the veffels of the that the fhip and cargo were in the courfe of the voyage insured taken as prize by perfons unknown. At the trial at Guildhall a special verdict was found, ftating in fubftance, that the defendant fubfcribed the policy in queftion, and that the parties named were interested in the goods infured. That on the 2d of June two allies, in cafe either is at war, to be furnished with a paff port expreff. ing (inter alia) the place of habitation of the commander of the veffel, is not complied with by a paffport granting leave "to G. D. commander of the fhip called the M. V of the town of P., of the burthen of," &c.; fuch defeription of place being applicable only to the hip as the laft antecedent, which is further defcribed by her burthen in a continuing fentence; and therefore the plaintiff was holden not entitled to recover upon a policy of infurance on fuch fhip warranted American, which had been captured by the French and condemned as prize. 1796 the said ship failed with her cargo from Philadelphia in the - 66 1804. BARING and Others againf CHRISTIE. guns, navimen, United States built, and bound for [ 399 ] Hamburgh, hath here taken on board cargo, as per manifeft "annexed, and hath here entered and cleared his faid veffel "according to law. And thefe are further to certify, that it "appears by the original register now produced to us that the "abovementioned fhip was registered at Philadelphia the 2d of May 1796. Given under our hands and feals of office at "the custom-houfe, this 30th of May, John Graff, Deputy "Collector, W. Tilton, D. &c." That the faid manifeft of the cargo was entitled, "Manifeft of the cargo of the fhip Mount Vernon, George G. Dominick mafter, bound for Cowes and Hamburgh in Europe." 2. The following fea-letter or passport, viz. (The special verdict here fet forth a fac fimile of the document in the form of a triplicate pafs, having three columns, the first in the French, the second in the English, and the third in the Dutch language. What follows is a tranflation of the French, which was the only part relied on in the argument as most favourable to the conftruction contended for on the part of the plaintiffs.) (FRENCH PASS.) (Tranflated from the French.) "GEORGE WASHINGTON, Prefident of the United States of America. "To all who fhall fee thefe prefents. Be it known, that leave and permiflion has been granted to George G. Dominick, mafter or commander of the ship called the Mount Vernon, of the town of Philadelphia (a), of the burthen of 42433 tons, or there (a) In the American and Dutch columns it was thus expreffed: leave and permiffion are hereby given to George Dominick, master or commander of the fhip called the Mount Vernon, of the burthen of 424 tons or thereabouts, lying at present in the port of Philadelphia, bound for Hamburgh." VOL. V. X Bouts |