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master or mariners does not discharge the underwriters,"

where the loss is occasioned by one of the perils against IloLDSWORTI

which they have insured. The second question is, what effect is produced upon the policy by the facts of the ship being deserted at sea, from the perils of the sea, being afterwards restored, with a charge upon her, and then being finally abandoned; whether those circuinstances entitle the assured to recover against the underwriters for a total or only for an average loss. The plaintiffs in this case claim to recover as for a total loss. If the defendants intended. to resist that claim they ought at least to have tendered to the plaintiffs the amount of the average loss, paid off the bottomry charge, and desired them to take possession of the vessel. Undoubtedly, the mere act of abandonment by the assured will not convert into a total that which is in reality only an average loss; but where the loss is in its nature total, where the thing insured is once totally lost to, the assured, though it may still remain in specie, the underwriters are bound either to pay the assured the whole value, or to restore the thing in a useful state into his possession. Falkner v. Ritchie (a) may perhaps be relied on by the other side, but that is very distinguishable from the present case. There the ship insured was seized by the crew, and plundered and deserted, and afterwards retaken by another ship, and brought, with part of her cargo, to an English port, not the port of her destination, and she could not be made fit for a voyage again without considerable expense; and it was held, that this was not a total loss, so as to entitle the assured to abandon after notice of the recapture. But in that case there was no actual charge upon the vessel; there had been no outlay of money upon her at the time when she was brought into port. Where the damage done, to the vessel is equal in amount to her full value, as it is in . this case, there is clearly a total loss; and where the ship has been once totally lost to the assured, even though her value exceeds the damage done to her, still, it is submitted,

(a) 2 M. & S. 290.

the claim as for a total loss is good. In such a case the assured is not bound to redeem the ship by paying the charges upon her, nor to discuss with the underwriters the comparative amount of the charges on the one hand and the value of the ship on the other. The underwriters might have redeemed the ship and restored her to the assured, and they not having done so, the assured had a right to abandon. If in the result the ship turns out to be worth more than the charges upon her, that will be matter of advantage to the underwriters; but it is clear, upon the evidence here, that the charges and expenses exceed the sum of 18001., the amount at which the ship was valued in the policy. There was clearly a total loss when the ship was first deserted, and her subsequent restitution, at an expense exceeding her value, will not convert that into an average loss. It has been decided that an abandonment made after capture, under circumstances which would entitle the assured at the time to recover as for a total loss, is not defeated, so as to become an average loss only, by the mere restitution and return of the ship's hull, before action brought, if the restitution be under circumstances which render it uncertain whether the assured may not have to pay more than its worth; M'Iver v. Henderson (a): and the present case falls precisely within the principle of that decision. Thornely v. Hebson (6), which will probably be cited on the other side, was a very different case from the present. There a ship being much damaged by tempestuous weather, the crew, completely exhausted, deserted her at sea for the preservation of their lives, and went on board another vessel then in sight, part of the crew of which, being fresh, immediately took possession of the ship, and succeeded in taking her safe into port. The ship was afterwards sold under a decree of the Admiralty Court to pay the salvage, and it was held, that the assured had no right to abandon, and that there was only an average loss. But there the ship was never absolutely abandoned; there was no actual dispos(11) 4 M. & S. 576.



v. Wise.

(b) 2 B. & A. 513.

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session or dereliction of her; she was never totally left by,

and lost to, the assured. That circumstance was relied on HOLDSWORTH

by Bayley, J., in bis judgment in that case, and sufficiently distinguishes it from the present. The argument is, that where the ship has once been utterly deserted by the crew, and has becoine once utterly lost and useless to the assured, there a total loss has taken place, which cannot be converted into an average loss by the subsequent recovery of the ship, at least under circumstances like the present, where the expenses attending that recovery exceed or at least equal the value of the ship.

Brougham and Starkie, contrà. First, the policy in this case was vacated by the negligence of the captain and the crew. The policy contained an implied warranty on the part of the assured of sea-worthiness in the ship and good seamanship in the crew, throughout the whole voyage. Without contending that the conduct of the crew amounted to barratry, still it is submitted that there was such negligence, and such a want of good seamanship, in this case, as discharged the underwriters from all liability, This is not like the case of Busk v. The Royal Exchange Assurance(a). There the policy expressly insured against fire; the fire was occasioned by the negligence of the mate: and the underwriters were held liable. And properly, for, except in the case of lightning, fire cannot happen in a ship except by negligence; therefore such negligence forms necessarily part of the risk insured against. Here the negligence of the crew, their want of skill and good seamanship, was a species of unseawortbiness, against which there was an implied warranty on the part of the assured. Every ship is liable to make some water, and, up to a certain extent, there may not be any danger to be apprehended from that circumstance. But there are limits beyond which danger must be obvious to every seaman of common prudence and experience. What man of

(a) 2 B. & A. 73.

1828. erdinary skill or prudence would have thought of sailing from New Brunswick on a voyage from thence to Ireland, HoldswORT! with a vessel then making nearly a foot water every two

Wise, hours? A ship so leaky was not sea-worthy; but she was warranted to be sea-worthy at every port she sailed from: therefore it was the duty of the captain to have remained at New Brunswick until he had stopped the leak, and rendered the ship fit for the voyage. Upon this part of the case, Tait v. Levi(a) seems ay authority in point, There, in a policy on a voyage up the Mediterranean, the underwriters stipulated that they would not be liable higher up than Tarragona. The captain went into Barcelona, an enemy's port, which is higher up than Tarragona, and where the ship was captured. It was held that the assured could not recover, because the mistake of the captain, arising out of gross ignorance, was a failure of the implied warranty on the part of the assured, that a captain and crew of competent skill and knowledge for the known purposes of the voyage should be provided. So, in Tatham v, Hodgson (b), it was observed by Lawrence, J., that it had never been decided that a loss arising from a mistake of the captain was a loss by perils of the sea; and in Pelly v. The Royal Exchange Assurance (c), Lord Mansfield said, “ If the chance be varied, or the voyage altered, by the fault of the owner or the master of the ship, the insurer ceases to be liable; because he is only understood to engage that the thing shall be done safe from fortuitous dangers, provided due means are used by the trader to attain that end.”Secondly, even if the plaintiffs in this case can recover at all, they can recover, at the utmost, only for an average loss. Thornely v.Hebson (d) is decisive to shew that this was not a total loss. It has been attempted to distinguish that case from the present, by the circumstance of the ship there having been taken possession of by another crew, immediately upon the desertion of

(a) 14 East, 481. (6) 6 T. R. 656.

(c) 1 Burr. 341; Park Ins. 15, 1st ed., 5th ed. 41, 17th ed. 67.

(d) 2 B. & A. 513.

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1828. her by her own; but here it does not appear how soon

after her desertion the Westbury was taken in tow by the HOLDSWORTH

Colombia, and therefore it may be presumed to have been Wise.

immediately: for if it had been after any considerable interval, it was for the plaintiffs to have proved that fact, which the defendants, of course, could not by possibility have the means of disproving. The facts of the two cases, therefore, are substantially the same. In both cases the salvors took the ship for the benefit of the owners, not of the underwriters. The possession of the salvor, as observed by Holroyd, J., in that case, is not an adverse possession as against the assured; nor does the mere desertion of the ship by the crew, of itself constitute a total loss. In this case, moreover, it could not have that effect, because it was not a fair and honest desertion, nor one called for by the circumstances. As to the amount of the damage, that cannot be prayed in aid to constitute a total loss, because, independently of the accident which happened to the ship in coming home, the expense of which cannot be taken into the account, the damage was far less in amount than the value of the ship, and therefore left the loss an average loss only.

BAYLEY, J.-With respect to the first question in this case, namely, whether the conduct of the master and mariners was such as to vitiate the policy, there is another case (a) of a similar nature coming under our consideration; therefore we shall not at present give any judgment upon that point. I would just say, however, that though the policy undoubtedly contains an implied warranty of seaworthiness at the commencement of the voyage, I doubt whether that warranty extends to every port from which the ship may proceed in the course of her voyage; and that though the term “sea-worthiness" clearly includes a crew sufficient generally in number and skill for the proper navigation of the vessel, I doubt whether want of skill in

(u) Shore v. Bentall, in which the Court have since decided that point against the underwriters.

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