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1897

RUABON STEAMSHIP COMPANY

v.

LONDON

pilotage, boatage, dock dues, and painting the ship's bottom. The defendants declined to pay the full amount of their proportion under the average statement on the ground that, as the vessel underwent her reclassification survey at the same time as the average repairs were effected, the cost of docking, ASSURANCE. painting, &c., should be divided between owners and underwriters. The plaintiffs contended that the vessel went into dock solely for the purpose of effecting the average repairs, and that therefore the underwriters were liable for the whole of the above charges. Ultimately the defendants paid a sum of 801., and the plaintiffs brought this action to recover the balance.

The following joint admissions were made for the purposes of the action :

1. That the vessel in fact passed her No. 1 classification survey of Lloyd's Register of British and Foreign Shipping as required by the rules when she was in dock, the opportunity of her being in dock being taken to examine her bottom to see if reclassification repairs were necessary. This admission (together with admissions Nos. 2 and 3) was made subject to the following qualification: "But not that she went into dock for that purpose, nor that any such repairs were done, nor that the time had arrived at which it was necessary for her to pass such survey."

2. That docking was necessary for the vessel to pass such survey...

3. That the specified items of expenditure were necessarily incurred in connection with the docking.

4. That such items were proper charges for the work done.

Cohen, Q.C., and Montague Lush, for the plaintiffs. The plaintiffs are not liable to contribute to the dry dock expenses, which were rendered necessary by the damage sustained by the vessel. Such expenses primarily fall on the underwriters, and there is nothing in the present case to take it out of the general rule. It is no answer to the plaintiffs' claim to say that they have gained the advantage of not having to put the vessel into dry dock in nine months' time for the purpose of her classification survey, for she might have been lost before that time. arrived. The present case is distinguishable from Marine

1897

RUABON STEAMSHIP COMPANY

v.

LONDON

Insurance Co. v. China TransPacific Steamship Co. (1); in that case the vessel was put into dry dock, not for repairs for which the underwriters were liable, but for the purpose of being scraped and painted and generally made in a fit state for a ASSURANCE. Voyage; having been put into dock for the owners' purposes, the owners were held liable for half the expenses. The result of that decision is that where the dock is intentionally used for a double purpose the expenses should be shared between the owners and underwriters; but here the dock expenses were incurred solely in respect of the repairs, and it was not until after the vessel was in dock that it occurred to the owners that she might be surveyed. It was not necessary at that time to put her in dry dock for the survey.

Joseph Walton, Q.C., and J. A. Hamilton, for the defendants. This case is covered by the decision in Marine Insurance Co. v. China TransPacific Steamship Co. (1) The intention with which the vessel was put into dry dock is immaterial; the question is whether the plaintiffs derived a benefit from the survey being made while the vessel was in dry dock for repairs. The reclassification of the vessel was not urgent and could have been deferred: it was done for the owners' convenience, and they have derived a benefit for which the underwriters ought not to pay. The contract of assurance is only one of indemnity; but the plaintiffs are endeavouring to get for nothing the benefit of a survey, which if made at the ordinary time they must have paid for.

Cohen, Q.C., in reply.

Cur, adv. vult.

Aug. 6. The following written judgment was delivered by MATHEW J. This was an action brought to recover the balance of expenses alleged to have been incurred by the plaintiffs in the repair of a ship of the plaintiffs insured by the defendants. The vessel in the course of her voyage sustained damage by perils insured against, and in order to make the repairs it became necessary to place the ship in dry dock. The vessel had been classed A 1 at Lloyd's, and the time for her survey and examination for the purpose of renewing her (1) 11 App. Cas. 573.

1897

RUABON

classification had not arrived, but by the rules of Lloyd's Register the owner was entitled to anticipate the time and call for a survey while she was in dry dock. After the vessel had STEAMSHIP been opened up for the purpose of the repairs, the survey was held and the vessel's class was renewed.

The plaintiffs called upon the defendants to pay the whole expense of putting the vessel into dry dock as a necessary part of the cost of repairs. The defendants contended that the plaintiffs were bound to contribute to this expense as an outlay from which the plaintiffs had derived material benefit. The defendants relied upon the judgment in the case of Marine Insurance Co. v. China TransPacific Steamship Co. (1) Counsel for the plaintiffs sought to distinguish this case upon the following grounds. In the first place it was said that the expense was not necessarily incurred by the plaintiffs. But in my judgment necessity in such a case must be measured by commercial rule. No prudent owner would allow his ship to lose her class because of the consequent damage to her character and capacity as an instrument for earning freight. The outlay was as necessary as the one of scraping and painting in the case of Marine Insurance Co. v. China TransPacific Steamship Co. (1) Then it was said that the vessel need not have been put in dry dock for the purpose of survey, because the usual time had not arrived. But under Lloyd's rules the owner was entitled to call for the survey, and it might therefore be said that the time for renewing the vessel's class had arrived. So far as the underwriters were concerned their position was the same as if the survey was held at the exact date, and the owner would have been imprudent if he had neglected so favourable an opportunity for having the survey made.

It was next argued that the case was unlike Marine Insurance Co. v. China TransPacific Steamship Co. (1), because the operations for the repair and for the survey of the ship, though concurrent, were not of the same character. But the survey of the ship required time and skill and outlay, and the operation in that respect was analogous to the time, skill, and outlay required for the repairs of the ship. Then it was contended that the survey was only "incidental," and I agree that for (1) 11 App. Cas. 573.

COMPANY

v.

LONDON ASSURANCE.

Mathew J.

1897 RUABON STEAMSHIP COMPANY

V.

LONDON

Mathew J.

outlay made upon the ship in operations that might have taken place equally well while the vessel was not in dry dock the owners ought not to be called upon to contribute. But here the survey could not be held elsewhere than in dry dock, and ASSURANCE. the case is within the principle as stated by Fry L.J. in that case in the following terms: "Where the circumstances are such that there are two persons, each of whom has a distinct object in view, which he can only accomplish at a certain expense, and if both these persons concur together, they can each accomplish their separate object at the same expense as would have been incurred by each of them if they had done it separately, there, it appears to me, the simple ordinary rulethe rule of justice and equity-is that the total expense which has been incurred by their doing their acts together, and which would have been incurred by each if they had done it separately, shall be divided between them. This appears to me to be one of the cases to which the well-known maxim that 'equality is equity' applies; and, therefore, treating the assured in the present case as if they were two persons, it seems to me the reasonable thing is, to attribute one moiety of the dock dues for the three days to the enterprise of cleaning the bottom of the ship, and the other moiety to the enterprise of repairing the stern-post."

It was said that a judgment for the defendants would give them an advantage at the expense of the owners. But the true view of the case seems to me to be that if the plaintiffs' claim was admitted, they would recover more than an indemnity in the saving of part of the expense which they must have incurred in order to secure a renewal of the vessel's class. I agree with the argument of the defendants that the case is covered by the decision in the House of Lords, and I give judgment for the defendants with costs.

Judgment for the defendants.

Solicitors for plaintiffs: Botterell & Roche, for Vaughan & Hornby, Cardiff.

Solicitors for defendants: Waltons, Johnson, Bubb & Whatton.

W. J. B.

In re GINGER.

Ex parte LONDON AND UNIVERSAL BANK.

Bankruptcy-Reputed Ownership-Bill of Sale-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 44, sub-s. iii.—Bills of Sale Act (1878) Amendment Act, 1882 (45 & 46 Vict. c. 43), s. 7.

Where the grantor of a bill of sale has become bankrupt before making any default in payment of the sums thereby secured, his possession of the goods assigned by it under such circumstances that he continues to be the reputed owner thereof is a possession by him with the consent of the true owner within the meaning of s. 44, sub-s. iii., of the Bankruptcy Act, 1883.

APPEAL from the decision of the county court judge of Bedfordshire.

On February 28, 1896, Ginger, a dairy-farmer, gave to the London and Universal Bank, Limited, as security for an advance, a bill of sale over his furniture, stock, cows, calves, horses, &c. The principal of the sum advanced and interest thereon were to be repaid as follows: 751. on May 28, and the remainder on August 28, 1896. The bill of sale was duly registered.

On March 20, 1896, Ginger gave to the bank, as security for a further advance, a further bill of sale over his crops, tenantright, and goodwill of his farm.

This bill of sale was registered on March 27, 1896.

On April 9, 1896, a bankruptcy petition was presented against Ginger, on which a receiving order was made on April 20. At that time there had been no default in the payment of the principal and interest secured by the two bills of exchange, and the bankrupt continued in the occupation of his farm, and in the carrying on of the trade or business of a dairy-farmer thereon.

On May 11 he was adjudicated bankrupt; and his estate was sold as a going concern, and the proceeds paid into

court.

On August 13 the liquidator of the bank, which had been

1897

May 24.

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