Cammell v Sewell
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1858 |
| Date | 01 July 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 615
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 27 L. J. Ex 447; 4 Jur. (N S.)978: affirmed 1860, 5 H. & N 728
[617] cammell and others v sewell and others. July 1, 1858-Tiover for deals. Pleas: not guilty : not possessed. The plaintiffs were the underwriters on a cargo of deals, valued in the policy at 11001, shipped on board the Prussian vessel "Augusta Bertha," from Onega to Messrs S at Hull. On the 17th of September the vessel struck on the rocks on the coast of Norway. On the 4th of October Messrs. S gave notice of abandonment of the cargo as totally lost. The plaintiffs accepted the abandonment and paid aa for a total loss On the 23rd of September the master had written to inform the owners of the cargo of the loss of the vessel. Before receiving an answer, the master and his agent took steps to cause an act, of survey of the vessel and cargo to be held. On the 27th of September the surveyors recommended, as best for all parties, that the vessel and cargo should be sold At that time the cargo had been safely landed. The master and his agent then applied to an officer, called the sheriff and director of auctions, to appoint a day for the sale, which, in pursuance of such appointment, took place on the 15th of October At the sale one J., the agent of the underwriters, publicly protested against the sale, but the officer presiding, deeming the proof of his authority insufficient, decided that the sale should proceed. The act of survey and public auction are judicial proceedings from which, by the law of Norway, appeals lie. J., as agent for the underwriters, then instituted in the superior Court in Norway a suit against the master, his agent and the purchaser of the caigo, praying that the public auction should be disavowed, and that the purchaser should be compelled to deliver up the goods in specie ò in November, 1853, judgment was given that the auction should be confirmed The deals were forwarded by the purchaser to the defendants in London who had made advances upon them, and who icfused to deliver them up to the plaintiffs on a demand by them in Apnl 1853. The deals realized 14701. There was evidence that, by the law of Norway, a sale by the master would transfer the property in the cargo.-Held. first, that, notwithstanding the abandonment, as there was no necessity to justify a sale, if the case had rested on the law of England or the general maritime law the purchaser would have gained no title as against the owners -Secondly that upon the acceptance of the abandonment by the underwriters their title to the cargo had relation back to the time of the alleged loss; and, therefore, that the plaintiffs might maintain trover, though the sale was before the acceptance of the abandonment. 616 CAMMELL V. SEWELL 3 H & N. 618 -Thirdly that such title was a title to the cargo itself in the state in which it was at the time of the loss, and not to the price only for which it bad been sold in Noiway.-Fourthly that the propriety of the abandonment was a question solely between the insured and the underwriter's, with which the purchaser of the cargo had nothing to do -Fifthly, that the plaintiff's were concluded by the judgment of the Court in Norway that the sale was valid.- Semble, that the judgment was one in rern which finally decided the question as to the status of the property.-But Held, sixthly, that, assuming the judgment to be in rem, it was not necessary to plead it, and that it was conclusive evidence on the plea that the goods were not the goods of the plaintiffs -Seventhly, assuming the judgment not to be in rem, that because the plaintiffs had sought their remedy in a foreign court of competent jurisdiction, they were conclusively bound by the judgment of such court-Eighthly that such judgment could only be impeached on the ground of fraud in the Court or in the procuring of the judgment, and not on the ground of any ftaud of the defendants in that suit.-Lastly, that it was not material that the judgment was given after the conversion.-Qutere, whether the validity of the sale should have been decided according to the law of Norway or the law of the domicile of the owner of the goods. [S. C. 27 L, J. Ex 447; 4 Jur. (N S.) 978 : affirmed I860, 5 H. & N 728 ] Trover for deals, with a count for money had and received. Pleas to the first count. Frtst, Not guilty. Secondly, that the goods weie not the goods of the plaintiffs To [618] the second count, Never indebted. Whereon issues were joined. At the trial a verdict was taken for the plaintiffs, subject to a special case, the parties being at liberty to refer to an appendix containing the depositions of witnesses examined under several commissions at Molde and elsewhere, the material facts being, in substance, as follows :- The plaintiffs are underwriters at Hull; the defendants merchants in London The action was brought to recover part of a cargo of deals shipped on board the Prussian ship "Augusta Ueitha" .it Onega, in Russia, by the Onega Wood Company, for Messrs. Simpson fe Whaplate of Hull, and by them insured with the plaintiffs for 11501. by policies valuing the deals at that amount The deals were consigned to Messrs Simpson & Whaplate under a bill of lading in the ordinary form. The plaintiffs at first refused to accept the notice of abandonment, but, on the 14th of December, 1852, paid Messrs. Simpson & Whaplate as for a total loss The portion of the cargo in question subsequently came to the hands of the defendants under the circumstances hereinafter mentioned, and was sold by them, realizing the net sum of 14701 4s. 2d., which the plaintiffs seek to recover m this action. On Saturday the 17th of September, the "Augusta Bertha," having put into Haroe Roads in consequence of the shifting of her deck cargo, drove from her anchorage on the rocks at Smaage, about three miles from Molde in Norway. On Monday the 19th the captain commenced discharging the cargo, which was ultimately stacked on two small islands. The ship was much damaged , arid it would have cost more to repair her than she would have been worth. The cargo was not materially damaged. Witnesses, however, stated that as it stood it was exposed to injury from the weather and sea water: that possibly [619] some of it might be washed away in storms ; and that it would require to be watched. The wreck lay out of the track of shipping. There was no harbour, the anchorage at Smaage was bad, and ships could not have been readily obtained for the purpose of forwarding the cargo to its destination. There was a conflict of testimony as to whether or not a prudent owner, if uninsured, would have sold the cargo on the spot. On the 23rd of September the captain of the " Augusta Bertha " addressed a letter, oi which the following is a copy, to Messrs. Simpson and Whaplate:- "Molde, 23rd Sept., 1852. "I am very sorry to inform you that I have had the misfortune to get ashore in Haroe Roads, Norway, into which I had been driven by a want of provisions and by bad weather. The vessel stands very badly, and is very much damaged, and full of 3H. &N 620. CAMMELL V. SEW ELL 6 17 water, so that it is impossible to put her again into a seaworthy condition. I have discharged one third of the cargo in order to float the ship, but have not succeeded in doing so. The deals, which are discharged, are very much damaged. As there is no English agent or consul here, I have applied to Bastian Width, in Molde, which is about three Norwegian miles from the place of the strand. I now beg you to wute me or Mr. Width what you intend to do with the cargo in case the ship is eutnely lost.-Awaiting your reply, "T. H. MlC'HAELlS." After the receipt of this letter, Messrs. Simpson & Whaplate abandoned the cargo as above mentioned, and the bill of lading of the " Augusta Bertha " was indorsed to the plaintiffs and delivered to them. On the 12th of October Messis Simpson & Whaplate, and Mr. Park agent [620] for the plaintiffs, respectively, wrote to the captain of the " Augusta Bertha " as follows .- "Hull, 12thOct 1852, "To Captain T. H. Michaelis, of the ship 'Augusta Beitha.' "Sir,-Your letter dated 23rd ult. came to hand, and we are very soiry to hear of your misfortune with the 'Augusta Bertha' being stranded and full of water. The underwriters, who have insured the cargo, wish you to give what further information you can. It is desirable that you should make a protest of the loss of the ship and cargo, and send it to us as early as possible. We send a letter on the other side addressed to you by Mr. Richard Park, who is agent here for the underwriters who have insured the cargo.-We remain, your obedient seivant, " simpson & whaplate. " Captain T. H. Michaelis of the ' Augusta, Bertha '" "Hull, 12th Oct 1852. " Sir,-Messrs. Simpson & Whaplate have handed to me your letter to them, dated 23rd September last, containing an account of the stranding of your vessel from Onega to this port I beg to acquaint you that on behalf of the underwriters on the cargo, I had previously written to Messrs. Heimann, Hoe & Co, agents to Lloyds, for Molde and places adjacent, lequesting them to pi event a sale of the caigo until further orders from England, and I trust you will do your best to carry these instructions out and use your utmost endeavours to save the whole of the caigo.-I am, Sir, your obedient, " richard park, "On behalf of the Underwriters." [621] Previous to this, Messrs. Fraser, Redman & Co., of London, had written to Mr. Jervell as follows :- "C. S. Jervell, Esq , Molde. " London, 2nd Oct. 1852. "Sir,-Messrs. Sewell, Hanbury & Sewell, of this city, have been good enough to favour us with your address, and we have no doubt that their introduction will induce you to pay the utmost attention to the following:- "The 'Augusta Bertha,' Captain T. H. Michaelis, of Memel, bound fiom Onega to Hull with deals, is, according to a report in...
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