Alexander Ralli, Pandia Theodore Ralli and Spiridion Mavrojanni v Alfred Janson

[422] cases argued and determined in easter vacation, XIX. victoria. The Court of Queen's Bench did not sit in Bane in this Vacation. in the exchequer chamber. alexander ralli, pandia theodore ralli and spiridion mavrojanni against albred janson. Friday, May 9th, 1856. Held, by the Exchequer Chamber, reversing judgment of Q. B., that, where memorandum goods of the same species, shipped in packages, are insured, and it is not expressed, by distinct valuation or otherwise, in the policy, that the packages are separately insured, the ordinary memorandum exempts the underwriters from liability for a total loss or destruction of part only (not being general average), if there be no stranding, though one or more entire package or packages be entirely destroyed, or otherwise totally lost, by the specified perils. [S. C. 25 L. J. Q. B. 300; 2 Jur. N. S. 566; 4 W. R. 568. Distinguished, Gator v. Great Western Insurance Company of New York, 1873, L. R. 8 C. P. 559.] The following case was stated without pleadings. "The action was brought to recover a total loss on the interest which attaches to the defendant's subscriptions, of 2501. each, to two policies of insurance, at and from Calcutta to London, in respect of the number of [423] bags of linseed hereinafter mentioned. One of the policies was effected on the 6th October 1851, and is as follows." The case then set forth the policy at length. It was for 30001., from Calcutta to London, upon "any kind of goods and merchandizes" in "any ship or ships" "valued at ." The memorandum as to average was as follows. "N.B, Corn, fish, salt, fruit, flour and seed are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides and skins are warranted free from average under 31. per cent., unless general, or the ship be stranded. On sundries to pay average as customary. Hides warranted free from particular average loss, unless the ship be stranded, sunk or burnt, but to pay the charges of washing and dyeing if damaged by sea water. To follow insurance 6 EL. & Bt 424. RAf.LI V. JANSON 923 for 30001,, dated 22d September." The policy contained stipulations for return of premiums, amongst others, " 19s. per cent, for interest in sugar, and 57s. per cent, for interest in indigo, lac dye, silk piece goods, hides and similar goods." There were also some warranties not material to the question discussed. Iti all other respects the policy wag in the ordinary printed form. The second policy was also set out; it was dated 21st October, and was for 60001 It was " to follow insurance for 30001., dated 6th October." In all other respects it was similar to the first. The case then proceeded. " The defendant subscribed each of these policies for 2501. The second policy was to follow and succeed the first policy. On the 18th October 1851, 22251. had been declared on the first mentioned policy in respect of goods to which the present question has no reference. This left 7751. still to be declared on the first policy. [424] On the 18th November 1851, the following declaration was endorsed on the first mentioned policy. Declaration per "Allan" as per previous policy £4010 Declared thereon 1785 Remainder to this policy 13th November 1851. per " Mary " E. C. 706] [-800 bags of sugar 94J £1900 950 ditto 400 per " Successor " per " Waban " c 2688 bags linseed 1600 1329 rapeseed 600 400 £5450 per " Florida " per "Commonwealth" R.S. 859 ditto Attaching to this policy £2225 775 £3000 The following declaration of interest was endorsed on the second policy. 18th November 1851. per " Mary " per " Successor " per " Waban " per "Florida" per " Commonwealth' Sugar £1900 Sugar 950 Linseed 1600 Rapeseed 600 Ditto 400 Valued £5450 See marks on previous policy Declared thereon 775 Remainder to this policy £4675 18th November 1851. [425] Subsequent declarations were made on the second policy to the full amount. In the month of August, 1852, a return of premium as to the whole of the 30001. and 60001. was paid by the underwriters to the plaintiffs, at the rate of 57s. per cent., on the ground of all the interest declared being free of particular average (a). The (a) By a memorandum on the policies, " interest declared on sugar " was to be 924 RALLI t'. JANSON 6 EL & Bl. m. linseed, insured and stated in these valuations or declarations, was packed in 2688 bags, which were shipped at Calcutta for London. The plaintiffs were interested in the linseed. The ship " Waban " sailed from Calcutta, with the 2688 bags of linseed on board, on the 5th day of December 1851, for London. The linseed was packed in separate bags, each being of the same size and containing the same quantity. In the course of the voyage the ship met with a hurricane and very heavy gales of wind, and was struck with seas, from which she sustained much damage, and sprung a teak, aud was in great distress. A part of the cargo was thrown overboard to lighten the ahip; and amongst other goods so thrown over were 505 bags of the linseed insured by the above policies. The ship ultimately bore up for the Cape of Good Hope, and arrived there in a very damaged state; aud a large part of the cargo was there discharged. Of the 2688 bags so shipped, 1023 bags were in such a state from sea damage thai a large portion of the said linseed was thrown into the sea as totally rotten and worthless, and the rest was sold and only realized a few shillings, and, if sent on in the vessel, [426] would have lost the character of linseed before arrival in England. The remaining 1160 bags were brought sound to England, and delivered to the plaintiffs. The proportion payable by the defendant for the general average has been paid by him to the plaintiffs. No notice of abandonment was ever given to the defendant. The ship was not stranded during the voyage. The plaintiffs claim a total loss upon each of the 1023 bags, If the Court shall be of opinion that they are entitled to a total loss, the amount payable by the defendant will be 81. 12s. lid. on the first policy, and 261. Is. upon the second policy; and judgment is to be signed accordingly for the plaintiffs. If the Court should be of opinion that the plaintiffs are not entitled to recover such total loss, judgment of non pros is to be entered for the defendant." This case had been originally stated in an action of Ralli v. Davis, between the same plaintiffs and another underwriter on the same policies. It came on for argument in the Queen's Bench, in Hilary Term (January 17th), 1854; Tomlinson appearing for the plaintiffs, and J. P. Wilde for the defendant: when the Court(o)1 stated that the opinion commonly received, since Davy v. Milford (15 East, 559), that an insurance on goods in packages was to be construed as insurance on each package, could not be overturned unless in a court of error, and gave judgment for the plaintiffs, recommending that the case should be turned into a special verdict. On the passing of The Common Law Procedure Act, 1854, the plaintiffs discontinued that action, and stated the same case in the present action. Judgment was, by [427] consent, given in the Queen's Bench for the plaintiffs, without argument; and the defendant appealed. The case was argued in the Exchequer Chamber in Michaelmas Term 1855 (November 15th) (a)2, by Wilde for the appellant, the defendant below, and Tomlinson for the respondents, plaintiffs below. The authorities and arguments are so fully noticed in the judgment as to render any further report unnecessary. Cur. adv. vult. Jervis C.J., in this vacation (May 9th), delivered judgment. This action was upon two policies of insurance, upon goods in respect of a total loss of 1023 bags of linseed, part of a larger quantity, shipped on board The " Waban " for a voyage from Calcutta to London. The first policy was effected, on the 6th of October 1851, for 30001,, upon goods insured, by order of the plaintiffs, from Calcutta to London, by ship or ships. It contained the usual memorandum, by which, inter alia, seed was " warranted free from average, unless general, or the ship be stranded." The second policy was to the like effect, for 60001., "to follow insurance for 30001." The linseed, of which that in question formed part, consisted of 2688 bags shipped free from average, to return premium "as for indigo &c.;" but indigo and the other articles on which, by the policy, there were to be returns were not all free of average. No reference was made during the argument to this statement, which could not affect the construction of the policy. (a)1 Lord Campbell C.J., Coleridge and Wightman Js. (a)2 Before Jervis C.J., Pollock C.B., Crowder and Willes Js., and Parke, Platt, Aid arson and Martin...