Magnus and Others v Buttemer
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1852 |
| Date | 29 January 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 720
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 119; 16 Jur. 480. Referred to, Dudgeon v. Pembroke, 1874-77, L. R. 9 Q. B. 595; 1 Q. B. D. 127; 2 App. Cas. 284. Distinguished, Letchford v. Oldham, 1880, 5 Q. B. D. 543.
[876] magnus and others v. buttemer. Jan.- 29, 1852. '[S. .0. 21 L, J. C. P. 119 ò 16 Jur. 480. Eeferred to, Dudgeon v. Pembroke, 1874-77, L. B. 9 Q. B. 595; 1 Q. B. D. 127 ; 2 App. Cas. 284. Distinguished, Letchford v. Oldham, 1880, 5 Q. B. D. 543.] Damage resulting from the ship's taking the ground on the falling of the tide, in a tide-harbour, in a spot where she is properly placed for the purpose of unloading, is not a stranding within the ordinary terms of a policy of insurance. This was an action of assumpsit on a policy of assurance on the ship " Elizabeth," for twelve calendar months, in port or at sea, in all services, in the coast and coasting trade of the united kingdom. The declaration stated that, during the time covered by the policy, and while 11C. B. 877. MAGNUS' V. BUTTEMEK 721 the ship was in service in the coasting trade in the united kingdom, with a cargo of timber on board, by the said ship taking the ground, and by and through the hardness and unevenness of the ground, and the perils and dangers of the seas, the ship was strained, broken, damaged, and injured ; and that an average loss was thereby incurred of 191. 19s. 7d. per cent. Pleas,-non assumpsit, and a denial of the loss in manner and form as alleged. Issue being joined, and the cause ripe for trial, it was agreed that the captain and mate of the " Elizabeth " should be examined viv& voce before one of the masters of this court, and that the facts disclosed on such examination should be stated in a special case for the opinion of this court. The material facts were as follows :- The "Elizabeth" sailed from Eochester to Sunderland. On her arrival at Sunderland, the vessel went up the river abreast of Laing's ship-yard. She had to wait four or five days before she could go in to discharge. She was moored head and stern, and floated when the tide was in, and was aground, but not dry, at low water. She took three days to discharge. The beach was hard, shingly, and steep. When the vessel took ground, she listed towards the beach about two planks. When the first tide was ebbing, a creaking noise was heard as she [877] took the ground, and it occurred when she floated again. This happened every tide, and sounded as if something was breaking. The cabin door, which would open and shut freely when the vessel was afloat, would not do so when she was aground. After first lying on the beach the vessel made more water than usual. The mate saw that she was " hogged," after having taken the ground. He observed that some of the trenails had started, and that some of the planks had left the trenails. The question for the opinion of the court was, whether, under these circumstances, there was a loss by perils of the seas. Tomlinson, for the plaintiffs. The facts stated in the...
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