Benson v Chapman
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1843 |
| Date | 01 January 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 1112
IN THE COURT OF COMMON PLEAS
S. C. in Exchequer Chamber, 5 C. B. 330; in House of Lords, 8 C. B. 950; 2 H. L. C. 696; 9 E. R. 1256 (with note to which add Assicurazioni Generali v. S. S. Bessie Morris Company, [1892] 1 Q. B. 581; [1892] 2 Q. B. 652.
1112 BENSON V. CHAPMAN 6 MAN. & G. 792. [792] cases argued and determined in the court of common pleas, in michaelmas vacation, in the seventh year op the eeign of victoria. The judges who usually sat in banco during this vacation were, Tindal C. J., Coltman J., Erskine J., Cresswell J. benson v. chapman. Dec. 6, 1843. [S. C. in Exchequer Chamber, 5 C. B. 330 : .in House of Lords, 8 C. B. 950 ; 2 H. L. C. 696; 9 E. E. 1256 (with note to which add Assicwazioni Generali v. S.S. Bessie Morris Company, [1892] 1 Q. B. 581; [1892] 2 Q. B. 652).] A. effected an insurance with B. on freight at and from Pernambuco to Liverpool, valued at 20001. Whilst coming out of the harbour of Pernambuco the vessel struck on a rock, whereby she was so much injured as to render it necessary to put back for repair. The ship was repaired at a cost of 71321. 3s. 8d., including the charges of landing and reloading the cargo. To raise funds to pay for the repairs, the master executed a bottomry bond, by which the ship, freight and cargo, were pledged for that sum and bottomry premium of 201. per cent. The ship afterwards sailed for and arrived at Liverpool with her original cargo on board. A., on receiving intimation of the extent of the damage done to the ship, gave notice of abandonment of ship and freight to the respective underwriters, and repudiated the bond; whereupon the parties claiming under the bond, took possession of the ship, and sold it under an order of the court of Admiralty. The ship sold for 16751., which, with the freight, was paid over to the obligees. The declaration averred a loss by the perils of the sea. Held, upon a special case, in which the court were to draw all inferences, which ought to be drawn by a jury-that A. was entitled to recover as for a total loss. Covenant, on a policy of insurance, dated the 12th of July 1839, made by the defendant as chairman of The Neptune Marine Insurance Company of [793] London, upon the freight of the " Lord Cochrane," at and from Pernambuco to Liverpool. The declaration averred that the ship took goods on board at Pernambuco upon freight, and proceeded on her voyage to Liverpool; that the plaintiff and another were interested in the freight; and that, while on her voyage, and during the continuance of the risk in the policy mentioned, she struck upon a bank in leaving the harbour of Pernambuco, and thereby, and by the perils of the sea, became disabled from proceeding on her voyage, and became wholly lost; whereby the freight was wholly lost; and that the plaintiff, as soon as he was informed of the extent of the loss, abandoned all his interest in the premises to the defendant and the company. The defendant, by his plea, first traversed the plaintiff's interest; secondly, the loss of the ship; thirdly, the loss of the freight; fourthly, the loss by the perils insured against; fifthly, the abandonment; and sixthly, he pleaded a set-off; upon all of which pleas issue was joined. The. cause coming on for trial at Guildhall, before Erskine J., on the 1st of July 1842, a verdict was taken, by consent, for the plaintiff, subject to the opinion of the court upon the following case, with liberty for either party to turn it into a special verdict-it being agreed, that, upon the argument of the special case, the court [794] might draw all inferences which, in their opinion, ought to be drawn by the jury; and that, if the case should afterwards be turned into a special verdict, such inferences should be stated therein as facts found by the jury :- The ship in question, being at Pernambuco, received goods on board on freight for Liverpool in the month of June 1839. The amount of the freight was 22001.; in which the plaintiff and the other owners of the ship were interested as averred in the declaration. Thus laden, she sailed from Pernambuco for Liverpool, on the voyage insured against, on the 29th of June 1839. While proceeding out of the harbour of Pernambuco, she struck on a rock and a bank, the damage produced by which rendered it necessary for her to put back to Pernambuco for repair. This was done; but, there being no dry dock there, nor any other means of examining the ship to ascertain the nature and extent of. the injury with a view to the requisite repairs, 6 MAN. & G. 795. BENSON V. CHAPMAN 1113 except by heaving down, it became necessary to take out the cargo, and heave the ship down, in order to make that examination. This was done accordingly: several surveys were necessarily made; and subsequently the master of the ship, in concurrence with the firm of M'Calmont and Co., of Pernambuco (to whom he had, on going out from England, been directed to apply for a cargo), proceeded to cause the ship to be repaired. She was under repair from the 29th of June 1839, to the 4th of January 1840. Pernambuco is a place very inconvenient and expensive for the repair of ships. The repairs done, the cost of which amounted to 71321. 3s. 8d., were necessary in order to make the ship navigable and in a condition to proceed on her voyage. To discharge this sum, all due means were taken at Pernambueo to obtain money from persons on loan, by bottomry and [795] otherwise (a). No money, however, could be obtained until M'Calmont and Co. consented to advance the sum of 71321. 3s. 8d. on bottomry; and accordingly the master, on the 6th "of January 1840, at Pernambuco, executed a bottomry bond to them, pledging the ship, freight, and cargo for that sum and bottomry premium at 20 per cent. On the 30th of December 1839, the plaintiff was shewn a letter from M'Calmont and Co. to their agents in London, which had been received, as follows :- "Pernambuco, 14th November 1839. " The ' Lord Coohrane's' expenses are likely to exceed 50001., with commissions, discharging, and reloading cargo," &c. &c. The plaintiff thereupon on the same day gave the following notice, not only to the defendant, but to the underwriters on the ship, which the plaintiff had insured with the several insurance offices described in the notice :- " London, 30th December 1839. " My ship, the '.Lord Cochrane,' being insured as follows :-ship, 30001. with the Indemnity Marine Insurance Company; 7001. with the Dundee Marine Insurance Company; 8001. with the Dundee Sea Insurance Company; freight, 20001. with the Neptune Marine Insurance Company; and having sustained damage since she sailed with her cargo from Pernambuco, and I having received information that the expenses incurred in relation to the accident will exceed the value of the ship and freight, and that the amount will be secured by bottomry, and that the repairs will, still be incomplete, I do hereby abandon the said ship and freight to the said respective insurers, according to their respective rights under the circumstances. [796] " I have further to acquaint the underwriters that I am informed that a bill will be drawn upon me for the amount, which will exceed 50001., by the payment of which the bottomry premium may be avoided; and that I shall not accept such bill on my own account, but shall be ready to pay same for their account, upon their putting me in funds for that purpose. "For self & Co." (Signed) "Tnos. benson. " William Ellis, Esq. Indemnity Mutual Marine "^Underwriters on the ship Insurance Company J for 30001." A. Crighton, Esq. Dundee Sea Insurance") rv.u. f onm r, t\ j J-Difcto for 8001. Company, Dundee. / To the Manager of g~ JDitto for 7001. The Dundee Marine Insur-1 ance Company, Dundee. James Mackie, Esq. Neptune Marine Insurance\Underwriters on Company / freight for 20001." The plaintiff did not interfere in any way afterwards in...
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... ... Moreover, in this case the cargo could have been transhipped and the freight earned ... [They also cited Irving v. Manning F16 ; Chapman v. Benson F17 ; Rosetto v. Gurney F18 ; and Tennants (Lancashire) v. Wilson & Co. F19 ] ... Willink K.C. replied ... Cur. adv. vult ... ...
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