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The Glenlivet (App.), Adm. partial burning of the ship. Let me put what I mean; I will have recourse to the cabin curtains again: suppose the cabin curtains were burnt-I think he would have told the jury that did not constitute a burnt ship. But suppose the after part of the ship was burnt altogether and the fore part was not burnt at all, I should think the jury might find that was a "burnt" ship, although there was only a partial burning. Therefore it seems to me it is impossible to decide absolutely in the affirmative or the negative as to whether a partial burning does constitute a burning or not within this policy; it may or may not, according to the actual facts appertaining to the partial burning. I now come to the suggestion of Mr. Aspinall, that it means the initiation of such a fire as, unless it were put out, would consume the ship. I cannot think that can be the meaning, for there never could be a fire which, if not put out, might not consume a ship. If the cabin curtain caught fire and was not put out, that might end in the destruction of the ship. Therefore that will not do. Then I come to the suggestion of my brother Barnes, which is that it must be a burning such as to render a ship temporarily innavigable. I do not think that that is right, because supposing there was such a burning as only to stop the ship for half an hour, would you call that a "burnt" ship? I should not. But that would come within my brother Barnes's definition if she were temporarily innavigable whilst the damaged part was being adjusted. My own view is that you would have to tell the jury what I have already said about partial burning, and that the other would not be a correct direction; you would have to tell them that a partial burning may under some circumstances constitute a "burnt" ship, and may not under other circumstances; and, having given that direction, you would have to ask them, Has the fire been such as to bring the ship to such a condition that you consider the ship a "burnt" ship? Then the jury would decide whether the facts brought it up to what you had laid down as the question for them to decide. I think my brother Barnes put too narrow a construction upon the word "burnt," but otherwise I agree with his judgment.

DAVEY, L.J.-I approach the consideration of this question with an entirely open mind, and the question I ask myself is whether upon the facts the ship has been "burnt" within the meaning of the policy. I can find nothing in the policy to satisfy me that the words are intended to be used otherwise than in accordance with the ordinary use of language. Mr. Aspinall says that the clause applies if a fire breaks out in any part of the ship or stores, although it is got under before any great amount of damage is done to the ship. I cannot bring myself to think that any person would, either in the accurate use of language or in ordinary parlance, say that in such a case the ship has been "burnt." Mr. Aspinall further says that the clause, or rather the exception, would have no meaning as applied to the ship unless you adopt the construction which he invites us to put upon the words; but in my opinion that suggestion or argument has been answered by Mr. Waltonthat it would have the effect of bringing within the ambit of the policy, or taking out of the exception in the memorandum, small damage not amounting to three per cent. which had been previously done to the ship. Remembering, therefore, that this clause has been considered as a condition, and that it is not for the mere purpose of excepting from the memorandum damage by fire, I answer the question by saying that the condition has not, in my opinion, arisen, because the ship has not been "burnt" within the meaning of the policy. I agree that it may be exceedingly difficult to put-and I do not know that it is very useful to attempt to put into a definition every case in which a ship could be "burnt." I agree that Mr. Justice Barnes's definition is open to criticism; but I think that it is really a question to be answered by the jury: Has the ship in the circumstances of this case been burnt? I am of opinion that the appeal should be dismissed.

Solicitors-Botterell & Roche, for appellants; Waltons, Johnson, Bubb & Whatton, for respondent.

[IN THE ADMIRALTY DIVISION AND IN THE COURT OF APPEAL.]

ADMIRALTY.
1893.
July 25, 26, 27.
Nov. 30.
Dec. 1, 2, 11.

THE MARY THOMAS.
THE MARY THOMAS STEAM-

V. THE GLOBE MARINE
INSURANCE COMPANY

(LIMITED).*

the 25th of September, 1889, and ending on the 24th of September, 1890. The risks, losses, and damages insured against (inter alia) were- of the seas and all other SHIP COMPANY (LIMITED) perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the subject-matter of insurance or any part thereof, at all times, in all places, and on all occasions and services whatsoever and wheresoever, including all risks incidental to steam navigation. The policy contained the clause "General average and salvago charges payable according to foreign statement or per YorkAntwerp Rules, if in accordance with the contract of affreightment."

Insurance, Marine-Policy-Construction-Foreign Adjustment-General Average-Particular Average—" General average as per foreign statement."

Where a policy contains the clause "general average as per foreign statement” the assured cannot recover against the underwriters as particular average items of expenditure included as general average in the foreign statement.

Where the policy contains such a clause, all expenses which are decided by the foreign adjuster to be general average must be so treated, not only as between the respective owners of ship and cargo, but as between them and their respective underwriters.

Dickenson v. Jardine (37 Law J. Rep. C.P. 321; Law Rep. 3 C.P. 639) distinguished.

Decision of BARNES, J., affirmed.

This was an action by the owners of the 8.s. Mary Thomas on two policies on ship and freight respectively. The action was tried upon an agreed statement of facts which stated as follows:

By a policy of insurance marked "A," dated the 7th of October, 1891, and effected on behalf of the plaintiffs with the defendant company, the said company, in consideration of a premium at the rate of 71. 108. per cent., agreed to pay and make good all losses and damages thereinafter expressed as might happen to the subject-matter of the policy and might attach to the policy, in respect to the sum of 1,000l. thereby insured, which insurance thereby declared to be upon

was

Hull, machinery, &c., valued at £18,000
Machinery, boilers, &c.,

10,000

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The following clause (inter alia) is attached to the said policy: "This insurance also specially to cover loss of or damage to hull or machinery through the negligence of master, mariners, engineers, or pilots, or through explosions, bursting of boilers, breakage of shafts, or through any latent defect in the machinery or hull, provided such loss or damage has not resulted from want of due diligence by the owners of the ship or any of them, or by the manager."

The said policy incorporates the ordinary sue and labour clause.

By a second policy of insurance marked "B," dated the 10th of October, 1889, and effected on behalf of the plaintiffs with the defendant company, the said company, in consideration of a premium at the rate of five guineas per cent., agreed to pay and make good all the losses and damages thereinafter expressed as might happen to the subject-matter of the policy and might attach to the policy, in respect to the sum of 1,2007. thereby insured and declared to be upon freight, chartered or otherwise, in the ship or vessel called the Mary Thomas, for and during the space of twelve calendar months commencing on the 25th of September, 1889, and ending on the 24th of September, 1890.

The risks, losses, and damages insured against (inter alia) were-of the seas, and all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the subject-matter of this insurance, in port and at sea, at all times, in all places, and on all occasions,

H

The Mary Thomas (App.), Adm. services, and trades whatsoever and where

soever.

The said policy incorporates the ordinary sue and labour clause.

On the 5th of May, 1890, the Mary Thomas, whilst on a voyage from Nicolaieff to Rotterdam, laden with a cargo of grain, stranded on the Monscian Reef, off the Island of Malta. Lighters and tugs were procured, and about 1,100 tons of the cargo were discharged into lighters, as described in the extracts from the ship's log, set out in the average statement marked No. 1, and on the afternoon of the 6th of May the Mary Thomas was towed off the reef and taken into Valetta Harbour with the remainder of the cargo on board. The ship was surveyed at Malta, and the surveyors recommended

that she should be docked for further examination, and the remaining cargo of about 1,920 tons was accordingly discharged, and the vessel was surveyed and temporary repairs done in the Pontoon Dock. The ship was making no water when lying at Valetta with the said cargo on board.

The cargo, discharged into lighters as aforesaid (except a portion which was lost), was taken into Valetta in the lighters and warehoused there. Payment for that service, including use of lighters and towage, was made to Tommasso Zammett & Co. in accordance with agreement, at the rate of 258. per ton of the quantity so stored. The cargo discharged from the ship at Valetta was also warehoused. When the repairs of the ship had been completed both portions of the cargo were reshipped. The reloading of the cargo was completed on the 28th of May, and on the 12th of June the Mary Thomas arrived safely at Rotterdam, and there delivered her cargo to the receivers. The whole of the charges and expenses incurred at Malta in connection with the said stranding, the repairs, and the reloading were reasonable and necessarily incurred. They were paid by the plaintiffs.

Subsequently to the delivery of the said cargo a formal average statement was prepared at the request of the plaintiffs in accordance with the usual practice at Rotterdam, and the sum of 3,9727. 78. 5d. was therein stated to be due in respect of

general average sacrifices and expenses from the several contributing interests in the following proportions-ship, 1,692. 18. 10d.; cargo, 2,0497. 98. 5d. ; and freight, 2301. 16s. 2d. The underwriters on ship and freight (including the defendant company) paid their proportions of the said sums of 1,692. 18. 10d. and 230l. 16s 2d., but the owners of the cargo refused to pay any part of the said sum of 2,0497. 98. 5d., whereupon an action was commenced against them in the Courts of Holland by the present plaintiffs, in accordance with the usual practice, to recover the said amount by way of general average contribution; but at the trial at Rotterdam judgment was given against the present plaintiffs, on the ground that the stranding of the said steamship being attributable to negligent navigation on the part of her master, there was no liability on the part of the owners of cargo laden on board to make the said or any other contribution in general average or otherwise. The said judgment was confirmed on appeal.

The said cargo was carried under bills of lading which contained the following exceptions: The act of God, perils of the sea, fire, barratry of the master and crew, enemies, pirates, and robbers, arrests and restraints of princes, rulers, and people, and other accidents of navigation excepted. Strandings and damages caused thereby are also excepted, even when occasioned by negligence, default, or error in judgment of the pilot, master, or other servants of the shipowners.

The bills of lading also contained the clause, " General average payable according to York-Antwerp Rules."

Pending the result of the said appeal a further adjustment (marked No. 2), dated the 6th of February, 1892, was made by Messrs. Manley, Hopkins & Co., average adjusters, at the request of the plaintiffs, and therein the said amount of 3,9721. 78. 5d. was readjusted by the separation of all general average losses and expenses as per foreign statement, under the several heads of (1) repairs, and (2) salvage, &c. According to the said further adjustment, 8067. 98. 3d. of the said sum was stated to have been incurred for and in connection with the repairs, and of this the cargo's proportion amounted to the sum of

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d

The Mary Thomas (App.), Adm. 4167. 18. 7d. The defendant company in due course, on request made by the plaintiffs, paid their due proportion of this latter amount in full—namely, 147. 17s. 2d.

A further average statement marked No. 3, dated the 26th of May, 1892, was prepared by Mr. John Francis, shewing the details of the losses and expenses (other than repairs) allowed in general average, from which it appears that the cargo's proportion of those losses and expenses amounted to 1,6337. 7s. 10d., including 847. 38. 4d. the cargo's proportion of wages and provisions of captain and crew at Malta, and 1757. 10s., the cargo's proportion of the cargo lost during the said operations. No part of this sum has been recovered by the plaintiffs; and though the plaintiffs have made applications to the underwriters on the Mary Thomas, including the defendant company, the said underwriters contended and still contend they are not liable to pay any part of the same to the plaintiffs. The plaintiffs, however, contend that under policy "A" the said underwriters are liable for the whole of the expenses properly incurred by the plaintiffs in relation to the refloating of the Mary Thomas, the subsequent towage into Malta, and the discharging at Malta for the purpose of repairing the said steamship. The following amounts, part of the aforesaid expenses, not having been paid by the owners of the cargo, are now claimed by the plaintiffs from the said underwriters (including the defendant company):

Portion originally debited (as per foreign statement) to cargo of charges and expenses incurred in discharging part of cargo into lighters, and in refloating the Mary Thomas, and towing into

Malta

.

Portion originally debited (as per foreign statement) to cargo of charges and expenses incurred in the discharge of cargo at Malta

Portion originally debited (as per foreign statement) to cargo of agency and incidental expenses

£799 12 0

150 8 9

227 3 3 £1177 4 0

The defendants' proportion of the said amount would be the sum of 42l. 3s. 1d., and this sum the plaintiffs now seek to

recover from the defendants under policy "A."

Subsequently to the discharge of the said cargo at Malta, various charges and expenses were incurred by the plaintiffs in connection with the warehousing and reshipping thereof, all of which were included in the general average as first stated; and of the said charges and expenses the plaintiffs have been unable to recover from the owners of the said cargo any portion whatever, and the following amounts, part of the aforesaid expenses, not having been paid by the owners of the said cargo, are now claimed by the plaintiffs from their underwriters on freight, including the defendant company in their due proportion:

Balance portion originally debited (as per foreign statement) to cargo of charges and expenses incurred in warehousing cargo. Balance portion originally debited (as per foreign statement) to cargo of charges and expenses incurred in reshipping cargo

£69 15 4

126 15 2 £196 10 6

The defendants' proportion of the said amount would be the sum of 139l. 48. 4d., and this sum the plaintiffs now seek to recover from the defendants under policy "B."

The questions for the decision of the Court are-first, Whether, upon the nonpayment of the cargo's proportion by the cargo-owners in the circumstances hereinbefore set forth, the defendants are liable to pay the said sum of 42l. 38. 1d., or any and what portion thereof under policy "A"; and, secondly, Whether, upon the non-payment of the cargo's proportion by the cargo-owners in the circumstances herein before set forth, the defendants are liable to pay the said sum of 1397. 4s. 4d., or any and what portion thereof under the sue and labour clause of policy "B," or otherwise. Should the Court be of opinion that a portion of either of the said amounts is payable by the defendants, it is agreed that the figures shall be adjusted in accordance with the decision of the Court.

J. Walton, Q.C., and H. Holman, for the plaintiffs.

T. G. Carver, for the defendants.
Cur, adv. vult.

The Mary Thomas (App.), Adm.

BARNES, J.-This case raises some questions of complication and difficulty, I think probably owing to the form in which the Case is stated for the opinion of the Court.

The action is brought by the plaintiffs, who are the owners of the steamship Mary Thomas, against the defendants, on two policies of insurance, the one being for 1,000l. on the Mary Thomas, valued at 28,000.; and the other being for 1,2001. on freight, chartered or otherwise, on the said vessel; and I think that both the policies contain the clause, "General average payable as per foreign custom or per York-Antwerp Rules, if in accordance with the contract of affreightment," in one case adding the words also "and salvage charges."

The policy on the ship appears to form one of a number under which she was insured, so far as I gather from the average statement. Now it seems that the vessel was on a voyage from Nicolaieff to Rotterdam with a cargo of grain, and in the course of that voyage she stranded on a reef off the island of Malta, and thereupon, without going in detail into what occurred, the usual operations were entered upon. The cargo was partially discharged and taken into Malta, and ultimately the ship was successfully got off and taken into Malta, and after she was in Malta she was completely discharged and repaired, the cargo was reloaded in her, the voyage was continued, and eventually the cargo was delivered at Rotterdam.

That having taken place, a statement of general average was made up at the request of the plaintiffs at Rotterdam, in accordance with the law and practice prevailing at Rotterdam. And the result of that general average statement was that a sum of 3,9721. 7s. 5d. was carried into the column which is called the general average column, and which then required to be apportioned amongst the various interests. And, accordingly, the statement proceeds to apportion to the shipowner in respect of his interest, and the ship has to contribute to that sum the sum of 1,6921. 1s. 10d.; the cargo the sum of 2,0491. 98. 5d.; and the freight the sum of 2301. 168. 2d.

That statement, having been so prepared

and made up, was put before the underwriters, including the defendants; and in respect of the policy on ship, after dealing with the other claims which are found in the statement, the sum of 215l. 48. is shewn to be due from the underwriters on the ship in respect of the claim on this policy, which of course includes their proportion of this sum which has been adjusted as a general average to be made good by the shipowner; and in respect of the claim on the policy on freight, the defendants are shewn to be liable for the sum of 1631. Os. 2d. in the same manner. Thereupon the defendants, having that statement put before them by the plaintiffs, liquidated the demand made upon them in pursuance of it, and in effect discharged, unless something else is to alter it, their liabilities for all claims on the policy. But the plaintiffs had to demand from the cargo its proportion of the general average which was attributed to it in the statement, and thereupon they made their claim in Holland against the consignees of the cargo; but they replied that they (the consignees) were not responsible to the plaintiffs for any contribution in general average, because, although the bills of lading under which the cargo was carried exempted the shipowners from responsibility from, amongst other things, accidents of navigation, stranding, default or error in judgment of the pilot, master, or other servant of the shipowners, yet that exemption, while freeing the owners from responsibility for the loss brought about by the stranding, which was caused by neglect, did not affect the ordinary rules applicable to the claim for general average; and that, as the general average was really brought about by the negligence of the plaintiffs' master or officer in charge, the plaintiffs could not claim from the consignees any contribution in general average. That contest came before the Courts in Holland, and ended in the decision that the cargo-owners were not, under the circumstances, liable to make contribution in general average or otherwise to the shipowners. There was appeal on this matter, and the judgment was affirmed. Pending the appeal, on examination of the average statement, it appeared that part of the final item for

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