Dean and Another against Hornby

JurisdictionEngland & Wales
Judgment Date17 January 1854
Date17 January 1854
CourtCourt of the Queen's Bench

English Reports Citation: 118 E.R. 1108

COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.

Dean and Another against Hornby

S. C. 2 C. L. R. 1519; 23 L. J. Q. B. 129; 18 Jur. 623. Referred to, Rankin v. Potter, 1873, L. R. 6 H. L. 127; Cory v. Burr, 1883, 6 App. Cas. 398. Distinguished, Ruys v. Royal Exchange Corporation, [1897] 2 Q. B. 140.

dean and another against hornby. Tuesday, January 17th, 1854. A ship was insured on a time policy, for a year ending 21st April 1852. In December 1851, being on her homeward voyage from Valparaiso to Liverpool, she was captured by pirates in the Straits of Magellan : in January 1852 she was recaptured by an English war steamer; and a prize master took the command, and brought her to Valparaiso. Intelligence of all these facts reached the owners, at one time, about the end of April 1852; and they, on 30th April 1852, gave notice of abandonment to the underwriters, stating that intelligence had arrived " of the condemnation at Valparaiso" of the vessel "as a prize to Her Majesty's steamer." The underwriters refused to accept.-The vessel was aent home by the recaptors from Valparaiso, under the command of a prize master, with instructions to proceed to Liverpool, and obtain an adjudication in the Court of Admiralty. She met with bad weather, and put into Fayal on 19th August 1852, where she was sold by the prize master, being then in a state not justifying the sale.-In December 1852, the owners commenced an action against the underwriters, claiming for a total loss. Held : that they were entitled to recover as for a total loss, there having been a total loss by the piratical seizure, in the first instance, and the owners not having afterwards, up to the time of the commencement of the action, had either actual possession or the means of obtaining it: and it being immaterial 3EL.&BL181. DEAN V. HORNBY 1109 whether there was or was not a right of detainer against the owners.-That the notice of abandonment was early enough, being given in reasonable time after the receipt of the intelligence of the loss.-That the inaccurate statement of the vessel having been condemned as a prize at Valparaiso did not vitiate the notice. [S. C. 2 C. L. R. 1519; 23 L. J. Q. B. 129; 18 Jur. 623. Referred to, Eankinv. Potter, 1873, L. E. 6 H. L. 127 ; Gary v. Burr, 1883, 6 App. Cas. 398. Distinguished, Buys v. Royal Exchange Corporation, [1897] 2 Q. B. 140.] Action on a policy of insurance upon the vessel "Eliza Cornish." The writ issued on 9th December 1852: and the parties, under stat. 15 & 16 Viet. c. 76 (The Common Law Procedure Act, 1852), s. 46, desired the opinion of the Court on a case in substance as follows. The "Eliaa Cornish" was insured from the 22d of April 1851 to the 21st April 1852, both days included. The case set out the policy, whereby the plaintiffs effected the insurance on the ship, valued at 18001.; and among the perils insured against were "pirate*"and "takings [181] at sea." The policy was duly underwritten by the defendant and fifteen other underwriters. On 7th November 1851, the "Eliza Cornish "set sail on her homeward voyage from Valparaiso to Liverpool, with a cargo and crew consisting of the master and six hands. On 1st December 1851, she put into Punta Arenas, in the Straits of Magellan, to repair some slight sea damage she had received. On the same day she was boarded by an armed force from the shore, who took forcible possession of her, and placed the master and crew under restraint, and conveyed them as prisoners ashore. The persons who committed this outrage were Chilians, acting under the orders of one Lieutenant Cambiaso. The Chilian Government had a penal settlement at Punta Arenas, which had been placed under the charge of a governor, named Munioz, of a captain Salas, and others, among whom was Lieutenant Cambiaso, and a few soldiers. Shortly after the arrival of the " Eliza Cornish," there was a mutiny and insurrection at the settlement. Cambiaso and some of the soldiers conspired with some of the convicts agaiiiat Munioz. Munioz was shot by them, the soldiers overpowered ; and Cambiaso assumed the command. Nothing was known of these events by those on board the " Eliza Cornish" when she put into Punta Arenas as aforesaid, as a friendly port. Having taken possession of the said vessel as aforesaid, the insurgents under the command of Cambiaso shot the master, and kept the crew in confinement. The insurgents threw overboard all the upper part of the cargo, consisting of guano, cocoa and bark, and plundered her of treasure amounting to about 20,0001. sterling. The mate of the vessel remained in confinement until 13th December 1851 ; when, fearing [182] that he would be shot if he refused, he agreed to navigate the vessel to Aranco; and he and the remainder of the crew prepared the vessel for sea again, working...

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4 cases
  • Masefield AG v Amlin Corporate Member Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 26 January 2011
    ...of a ransom by or on behalf of the shipowners. 11 At the forefront of this analysis was the Claimant's reliance on the decision in Dean v Hornby (1854) 3 El & Bl. 180 that was said to support the proposition that, in the case of capture by pirates who intend to exercise dominion over a ship......
  • Cory v Burr
    • United Kingdom
    • House of Lords
    • 30 April 1883
    ...Blackburn, Bramwell, and Fitzgerald Cory v. Burr Kleinwort v. ShepardENR 1 E. & E. 447 Powell v. HydeENR 5 E. & B. 607 Dean v. HornbyENR 3 E. & B. 180 Earle v. RowcliffeENR 8 East. 126 Havelock v. HancillENR 3 T. R. 277 Naylor v. PalmerENR 10 Ex. 382 Lockyer v. OffleyENR 1 T. R. 252 Marine ......
  • Republic of Bolivia v Indemnity Mutual Marine Assurance Company Ltd
    • United Kingdom
    • Court of Appeal
    • 28 January 1909
    ...[CT. OF APP. it was ejuedem gener's, and more like piracy than anything else. They referred to Dean v. Hornby, 23 L. T. Rep. 0. S. 222; 3 E. & B. 180; Reg. v. Tivnan and otherS, 10 L. T. Rep. 498; 5 B. & S. 645; Wheston's International Law, 4th edit, p. 201; Hall's International Law, 5th ed......
  • Ruys v Royal Exchange Assurance Corporation
    • United Kingdom
    • Queen's Bench Division
    • 31 May 1897
    ...Wyse 7 B. & E. 794 Smith v. Robertson 2 Dowl. 474 Falkner v. Ritchie 2 M. & S. Naylor v. TaylorENR 9 B. & C., at p. 724 Dean v. HornbyENR 3 E. & B. 180 Lozano v. JohnsonENR 2 E. & E. 160 Rodoconachi v. Elliot L. Rep. 8 C. P. and 9 C. P. Rankin v. PotterDID=ASPM L. Rep. 6 E. & I. App. 126 2 ......
2 books & journal articles
  • THE CESSATION OF SUE AND LABOUR
    • Singapore
    • Singapore Academy of Law Journal No. 2006, December 2006
    • 1 December 2006
    ...the Act; see Polurrian Steamship Company, Limited v Young[1915] 1 KB 922 (CA) (“Polurrian Steamship”). Dean v Hornby(1854) 3 El & BL 179; 118 ER 1108 was a case of total loss by piratical seizure before the UK Act was enacted. Sue and labour was not in issue there. 13 There is a practice am......
  • Masefield AG v. Amlin Corporate Member Ltd.
    • Australia
    • Melbourne University Law Review Vol. 35 No. 2, August 2011
    • 1 August 2011
    ...7, c 41. If it were an ATL claim only, then the notice of abandonment would have been unnecessary: s 57(2). (26) (1854) 3 El & Bl 180; 118 ER 1108. (27) Masefield EWHC [2010] 2 All ER 593,597 [11] (Steel J). (28) The policy wording stipulated that s 60(2)(i) did not apply to this insura......

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