John Knight, William Ware and Others against Faith and Another
| Jurisdiction | England & Wales |
| Judgment Date | 23 September 1850 |
| Date | 23 September 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 605
QUEEN'S BENCH.
S. C. 19 L. J. Q. B. 509; 14 Jur. 1114. Dictum adopted, Lidgett v. Secretan, 1871, L. R. 6 C. P. 630. Discussed, Rankin v. Potter, 1873, L. R. 6 H. L. 102. Distinguished, Pitman v. Universal Marine Insurance Company 1882, 9 Q. B. D. 198. Referred to, Trinder v. Thames and Mersey Marine Insurance Company, [1898] 2 Q. B. 119.
18 Q. B.84. KNIGHT V. FAITH 605 [649] john knight, william ware and others against faith and another. 1850. A ship, insured in 10001. for a year ending 23d September, was stranded, got off, and brought into the harbour of Sta. Cruz, on September 16th. She remained there with her crew on board till the middle of October, and, during that time, was pumped ; and her cargo was discharged into other vessels. Being then beached and surveyed, she was found so much damaged by the accident that the necessary repairs could not be done at Sta. Cruz, there being no dockyard, workmen or materials there; nor could she be taken to any port where she could prudently have been repaired. Afterwards, in October, the master (who was a part-owner, and interested in the policy) sold her for the benefit of thoae whom it might concern ; and she fetched 721. No notice of abandonment was given. A special case, in an action against the underwriters, set forth these facts stating also that the vessel, " received her death blow," by the said perils of the seas on September 16th, but that the damage was not ascertained till the 24th. Held : 1. That the sale by the master did not, nor did the other facts, constitute an actual total loss: and that, if there was a constructive total loss which would have entitled the assured to abandon, they could not recover for such loss, not having given notice of abandonment. 2. That the assured were entitled to recover for partial loss by the stranding before September 23d, though the loss was not ascertained till after that day; the proximate cause of loss, the injury by stranding, having taken place during the year covered by the insurance. 3. That the ultimate loss did not prevent such recovery; for that the partial loss by stranding caused an actual prejudice to the assured, which was not merged in the final loss resulting from the sale, even assuming this to have been a total loss necessarily consequent upon the stranding: the loss being one which, as total, the insurers were not liable to pay for. [S. C. 19 L. J. Q. B. 509; 14 Jur. 1114. Dictum adopted, Lidgett v. Searetan, 1871, L. B. 6 C. P. 630. Discussed, Bankin v. Potter, 1873, L. R. 6 H. L. 102. Distinguished, Pitman v. Universal Marine Insurance Company 1882, 9 Q. B. D. 198. Referred to, Trinder v. Thames and Mersey Marine Insurance Company, T18981 2 Q. B. 119.] This was an action of covenant upon a time policy of marine insurance for 10001., upon the vessel "Pusey Hall," valued at 81. per ton, during the space of twelve calendar months commencing oti the 24th September 1845, and ending on the 23d September 1846. The declaration alleged a stranding, damage and total loss by the perils of the seas, to which the defendant pleaded, denying the alleged stranding, damage or loss modo et forma; upon which issue was joined : and the cause came on to be tried, before Lord Denman C.J. and a special jury, at the sittings after Trinity term, 1848, in London, when a verdict was found for the plaintiffs, damages 10361. 17s. 10d., being the amount insured and interest; subject to the opinion of this Court upon a special case. The case was as follows. [660} The " Pusey Hall," being on the voyage mentioned in the policy, in search of guano upon the coast of Patagonia, upon her return from the Falkland Islands, where she had been to obtain provisions, in endeavouring to make the harbour of Santa Cruz, off which she was in order to complete her cargo of guano there, on the morning of the 16th September 1846, whilst the tide was ebbing, accidentally took the ground abaft, swung round, and remained fixed upon the bottom, which consisted of hard blue clay and rocks, until the flowing of the tide in the evening of the same day, when, after thumpitig heavily for half an hour, she was at length by assistance got off, and brought the same evening inside the bar into the harbour of Santa Cruz. The vessel received no injury after the 16th September, and remained, with her crew on board, in the harbour of Santa Cruz, where she was pumped from time to time and her cargo discharged into other vessels, until the middle of October 1846, when she was beached for the purpose of being surveyed; and a survey was then accordingly held ; when it was found that she had been so damaged by the aaid accident of the 16th of September that the necessary repairs could not be done at Santa Cruz, there being no dockyard, workmen or materials there; nor could she be taken to Monte Video or to auy place where she could have been prudently repaired. [She was sold on the 28th of October, 1846, and fetched 721. 10s. She was sold by 606 KNIGHT V. FAITH 16Q. B. 851. the master, who was a part owner, and interested in the policy. He sold her for the benefit of whom it might concern. There was no notice of abandonment (a)1.] [651] Although the vessel received her death blow by the said perils of the seas on the 16th of September, the extent of the damage was not ascertained until after the 24th of the same month. The pleading (which are sufficiently stated in the case and judgment of the Court) accompanied and were to be taken as part of the case. The question for the opinion of the Court was: whether the verdict is to stand for the plaintiffs or to be entered for the defendants. The case was first argued in Easter term (April 23d) 1850 (a)2, by Willes, for the plaintiffs and Martin for the defendants. The points made in argument for the defendants were : 1. That there was no actual total loss within the time limited by the policy. 2. That there was no partial loss, ascertained within the limited time, and there fore none for which the plaintiffs could recover; Meretony v. Dunlope (V). 3. That, if there was a partial loss, it was followed, after the expiration of the limited time, by a total loss, and merged in that: and that, as the plaintiffs could not recover for the total loss, they had no remedy for the partial; Livie v. Jansan (12 East, 648), Stewart v. Steels (d). [652] Willes contended, on the first point, that, although there had been no destruction of the vessel's substance before the 23d of September 1847, she had, to all practical purposes, ceased to exist as a ship; for she was not fit to be removed to any place where repairs could be done, and was therefore in the same condition as if she had remained aground off Santa Cruz till her timbers rotted. On this point he cited, among other authorities, the language of the Court of Exchequer in Ban v. Gibson (Z M. & W. 390, 400, 1). As to the second point, and the supposed doctrine of Meretony v. Dunlope (1 T. E. 260), he referred to Arnould on Insurance, vol. i. p. 411 (part i. c. 14, s. 154), p. 451 (part i. c. 15, s. 171), and vol. ii. p. 755, 5 (part iii. c. 1, s. 280), and 3 Kent's Comrn. 308 (4th ed. part 5, lect. 48, ii. (1)), note (a), there cited ; and he relied upon Shawe v. Felton (2 East, 109), which, indeed, was the case of a voyage policy, but not, as he contended, distinguishable on that account. [Lord Campbell C.J. The one is limited by time, the other by space, but with equal precision.] On the third point, he contended that the underwriters could not be exempt from liability for a clear partial loss merely because a total loss had resulted from it, observing that in the cases on this point relied upon by the defendants, the partial loss was unconnected with the total; here the partial loss caused it. [Lord Campbell C.J. Your argument comes to this, that here the partial loss is, in effect, a total loss.] Martin, coutri, contended, as to the first point, that the proximate, not the remote, cause of loss must be looked to; Powell v. Gudgeon (5 M. & S. 431); and here the proximate [653] cause was the decision, after the limited time had expired and the ship had been beached and surveyed, that she was not worth repair under the circumstances ; she being at that time not a mere "congeries of planks "(a)3, but capable of repair...
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