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his declaration he claimed for a total loss. Gardiner v. Croasdale (a); Benson v. Chapman (b). It seems difficult, under the evidence given at the trial, to see how the jury could have made any adjustment so as to estimate the amount for which the defendant would be liable for a partial loss. As no repairs were put on the vessel, there is an absence of that by which ordinarily such liability is ascertained; and if it be said that in such case the amount is to be ascertained by the estimate of surveyors, there was no evidence of such estimate. It is true, that as evidence of the preliminary proof, a copy certified by the British Consul at Havana, of what purported to be a report of survey by two persons as to the expense of repairs at Havana, was read at the trial; but it cannot be contended that this document would be any evidence by which the liability of the defendant for a partial loss could be estimated. Had the case gone to the jury with directions that the defendant was only liable for a partial loss, it would have been very similar to the case of Tanner v. Bennett (c), where, on the jury finding that the plaintiff had sustained a partial loss, but to what extent there was no evidence, Lord C. J. Abbott directed a verdict for the plaintiff with nominal damages. The vague statement of Captain Outhouse, that it would have cost $6,000 to repair at Havana, could hardly be evidence for this purpose: he probably took that amount from what he heard from the surveyors, or saw in their report.

We think, therefore, that the rule for a new trial should be made absolute, unless the plaintiff consents to have the damages reduced to 1s., or both parties can agree to refer the estimate of liability on a partial loss, to some person for adjustment (d).

(b) 8 C. B. 950.

(c) Ry. & Moo. 182.

(a) 1 W. Bla. 198. (d) In Millidge v. Stymest (East. T. 1866), the plaintiff claimed for a constructive total loss, but the evidence shewed a partial loss only, the vessel having been repaired and sailed again. No evidence having been given of the amount of the repairs, the plaintiff was nonsuited; -Held, that the nonsuit was wrong, and that the plaintiff was entitled to nominal damages at all events.

As to constructive total loss, and notice of abandonment, see Kemp v. Halliday, L. R,1 Q. B.520; Farnworth v. Hyde, L. R. 2 C. P. 204; Browning

V.

1862.

WOOD

against STYMEST.

1862.

WOOD against

STYMEST.

v. Provincial Insurance Company of Canada, L. R. 5 P. C. 263; Rankin v. Potter, L. R. 6 H. L. 83; Meyer v. Ralli, L. R. 1 C. P. Div. 358; O'Leary v. Stymest, Stev. Dig. 231. As to the master's authority to sell,- Australasian Steam Navigation Company v. Morse, L. R. 4 P. C. 222; Cobequid Marine Insurance Company ▼. Barteaux, L. R. 6 P. C. 319.

A vessel sailed from Shields, bound for Providence,

and in consequence of a

the cargo was

the vessel was

her arrival at

general aver

TH

MCGIVERN against STYMEST.

HIS was an action on a policy of insurance on the bark "Alma," brought to recover for general average Rhode Island; contribution. The declaration set out a policy made at St. John, to insure the vessel from the 29th August, 1859, storm, part of till the 29th February, 1860, with the usual provisions as jettisoned,and to the liability of the underwriters. It then averred that obliged to put after the commencement of the risk, and while the vessel into Cowes for repairs. On was on a voyage from South Shields to Providence, Rhode Providence, a Island, with a cargo of coals and other goods, to wit, on age was made the 22d September, 1859, she was greatly damaged by a up, including ing the wages storm, and was obliged to throw overboard a portion of her cargo, and to put into Cowes to repair her damages; that after being repaired she sailed again on the voyage to that the rule Providence, and was again damaged by a storm, and erage prevail- obliged, for the safety of the vessel, to throw overboard ing at Rhode Island, and another portion of her cargo, and to put into Queenstown lish rule, was in Ireland to repair, and to enable her to proceed on her voyage. It then alleged that the plaintiff became liable to pay and did pay a proportionate part of the value of the British port. goods thrown overboard, and thereby sustained a general average loss amounting to a large sum.

and mainte

nance of the

crew at Cowes; Held,

of general av

not the Eng

to be adopted, though the policy was made at a

counts for money paid, and for interest.

Plea, non-assumpsit.

There were also

At the trial before Ritchie, J., at the last St. John circuit, it appeared that the vessel sailed from Shields on a voyage to Providence, Rhode Island, and met with a violent storm by which she was so much damaged that she was obliged to put into Cowes in the Isle of Wight to refit; that after being repaired there, she sailed for Providence,

and

1862.

MCGIVERN

and was again compelled by stress of weather to put into Queenstown. Considerable expenses were incurred both at Cowes and Queenstown, in putting the vessel in a against proper condition to complete her voyage to Providence. STYMEST. There was a jettison of part of her cargo before she put into Cowes, and a further jettison before she put into Queenstown. She delivered the remainder of her cargo at Providence, where an adjustment of the general average was made up according to the rule prevailing at that port, and by which the wages and maintenance of the crew are general average charges.

The learned Judge directed the jury that the adjustment of the general average should be made at Providence, the port of discharge, and according to the rule which prevailed there. The jury found a verdict for the plaintiff for $4,656, which included the wages and maintenance of the crew while the vessel was at Cowes.

In Hilary term last, C. W. Weldon obtained a rule nisi for a new trial, on the ground of misdirection, and that the damages were excessive.

The case

S. R. Thomson and Savary shewed cause. of Power v. Whitmore (a), which decided that the wages and provisions of the crew, in a port where the vessel was compelled to go for safety and to repair damages occasioned by a storm, were not the subject of general average, turned upon the ground that there was no evidence of any usage at the port of discharge to treat expenses of that description as general average charges. That case has been overruled by Simonds v. White (b), which decides that a general average loss is to be calculated according to the law of the port of discharge. 2 Arnould Ins. 903. The foreign adjustment is conclusive upon all parties, though it may be different from what our own law would have made. Dagleish v. Davidson (c). This is stated to be the settled law, in all the books upon the subject of insurance. 2 Arnould, 943; 2 Phill. Ins. § 1413; 2 Pars. Mar. L. 43; 3 Kent's Com. 337. A part of the cargo in this case, having been sacrificed for the preservation of

(a) 4 M. & S. 141.

(b) 2 B. & C. 805.

(c) 5 D. & Ry. 6.

the

1862.

MCGIVERN against

the ship and the rest of the cargo, the claim for general average contribution is complete. Hallett v. Wigram (a). There is no hardship in the rule now contended for; but STYMEST. if parties wish, they can provide against it in their contract. In Simonds v. White, Lord Tenterden says, that by assenting to general average as a maritime usage, the parties must be taken to assent to its adjustment at the usual and proper place, according to the usage and law of the place.

C. W. Weldon, contra. The authorities have made a distinction between a loss by jettison, and a loss by expenditure. 2 Arn. Ins. 876, 903, 933. The case of Power v. Whitmore is not overruled by Simonds v. White; and in De Vaux v. Salvador (b), it was held that the wages and provisions of the crew during the time the vessel was detained in repairing damage done by perils of the seas, were not the subject of a general average claim against the underwriters. If the port of destination is the place of adjustment, where is the adjustment to be made in a case where the ship has foundered? This shews that the law of the country where the contract was made, ought to govern; and that was so decided in Power v. Whitmore (c). Admitting that the plaintiff, as owner of the vessel, may be bound to contribute to the general average accordding to the law of Rhode Island, it does not follow that the underwriters are also bound by that rule.

Cur. adv. vult.

CARTER, C. J., now delivered the judgment of the Court. Having, before granting the rule nisi, considered the objections made to the yerdict, and come to the conclusion that there was only one on which sufficient doubt arose as to the propriety of the adjustment, namely, in the allowance of seamen's wages and maintenance as a general average charge, we shall confine ourselves to that point. The propriety of this allowance must, in our opinion, depend upon the point, whether the rule prevailing at the port of destination, namely, Providence, Rhode Island, in (a) 9 C. B. 680. (b) 4 A. & E. 490. (e) 4 M. & S. 141.

the

1862.

MCGIVERN

against

the United States of America, which, in common with other States of the Union, and other foreign countries, makes the wages and maintenance of the crew a general average charge; or the rule in England, by which such charge is STYMEST. clearly excluded from a general average adjustment, should be adopted in making this adjustment.

The insurance in this case was effected by a time policy, for a period commencing 29th August, 1859, and ending 29th February, 1860, with this addition, "That if the ship "be at sea at the expiration of the policy, the risk to be "in force until arrival at port of destination, on notice "being given to the broker, and paying pro rata pre"mium: each month entered upon, to count a full month." Certain ports are specified to which the ship is not to go at all; and others, to which she is not to go at particular times of the year, without forfeiture of the policy. All other ports are open to her. One rule of law or usage existing in one place to which the ship was at liberty to go, and another rule or usage in another place, equally open to her; and we must presume that both the underwriters and the assured take into consideration, and make their contract with reference to this circumstance; and if the port of destination is a foreign port, at which seamen's wages and maintenance are a general average charge, and the port of destination is the proper place at which the adjustment is to be made, and not the place where the contract is made, or the expenses incurred; then it seems clear upon the authority of Simonds v. White (a), that the law of the place where the adjustment is to be made, should govern, and the respective liabilities of ship, freight, and cargo be according to that law.

The ship" Alma” sailed from Shields, in England, bound for Providence, Rhode Island; and was compelled to put into Cowes, in the Isle of Wight, to refit in order to prosecute the voyage, there having been a jettison of part of the cargo, before putting into Cowes. She was again compelled to put into Cork; and at both places, Cowes and Cork, considerable charges were incurred; and

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