Stainbank and Another v Shepard
| Jurisdiction | England & Wales |
| Judgment Date | 14 February 1853 |
| Date | 14 February 1853 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 1262
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
S. C. 1 C. L. R. 609; 22 L. J. Ex. 341; 17 Jur. 1032. Referred to, The Onward, 1873, L. R. 4 Ad. & E. 51. See also Stainbank v. Fenning, 1851, 11 C. B. 51.
[418] stainbank and another v. shepard. Feb. 14, 1853. [S. C. 1 C. L. E. 609 ; 22 L. J. Ex. 341 ; 17 Jur. 1032. Eeferred to, The Onward, 187.3, L. R. 4 Ad. & E. 51. See also'Stainbank v. Penning, 1851, 11 C. B. 51.] The master of-a vessel has no authority to hypothecate, for money borrowed at a foreign port for necessary repairs and disbursements, and by the same instrument pledge the personal credit of his owner for such advances,-whether maritime interest be stipulated for or not. But a bottomry-bond may be given at the same time with, and as a collateral security for, bills drawn on the owners for moneys so borrowed.-A vessel having put into a foreign port in a damaged state, the master borrowed money of a merchant there, for necessary repairs and disbursements; to secure which, he drew bills upon his owner, and also executed an instrument which purported to be an hypothecation of the ship, cargo, and freight. By this instrument, the merchant who advanced the money forbore all interest beyond the amount necessary to insure the ship to cover the advances; and the master took upon himself and his owner the risk of the voyage, making the money payable at all events, and subjecting the ship to seizure and sale by virtue of process " out of Her Majesty's High Court of Admiralty of England, or any court of Vice-Admiralty possessing jurisdiction at the port at which the said vessel might at any time happen to be'lying, or to be, according to the maritime law and custom of England," in the event of the bills being refused acceptance, or being dishonoured :-Held, that, this not being such an hypothecation as could be enforced in the court of Admiralty,- the payment of the money borrowed not being made to depend upon the arrival of the vessel,-the merchant had no insurable interest in the ship. This was an action of assumpsit. The first count of the declaration stated that the plaintiffs, by and under the name, style, description, and firm of C. Stainbank & Son, theretofore, to wit, on the 1st of December, 1846, according to the usage and custom of merchants, caused to be made a certain policy of insurance, purporting thereby, and containing therein that the plaintiffs, as well in their own names as for and in the name and names of all and every other person or persons to whom the same did, might, or should appertain, in part or in all, did make assurance, and cause themselves, and them, and every of them, to be insured, lost or not lost, at and from Quebec to a final port of discharge in the United Kingdom, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel called the " Hartland," whereof was master George Hooper,-beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship, upon the said ship, &c., and so should continue and endure during her abode there, [419] upon the said ship, &c., and, further, until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever, should be arrived at (as above), upon the said ship, &c., until she had moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same should be there discharged and safely landed; and that it should be lawful for the said ship, &c., in the said voyage, to proceed and sail to, and touch and stay at, any ports or places whatso- 13 C. B.420. STAINBANp. V: SHEPABD 1263 ever and wheresoever, without being deemed a deviation, and without prejudice to the said insurance: the said ship, goods, and merchandises, &c., for so much as concerned the assured, by agreement between the assured and assurers in that policy, were and should be 15001, advances for repairs and disbursements, and the whole valued as 16751., including premium of insurance : touching the adventures and perils which they, the assurers, were contented to bear, and did take upon them in that voyage, they were of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of marque and countermarque, surprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, and people, of what nature, condition, or quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that had or should come to the hurt, detriment, or damage of the said goods and merchandises, and ship, &c., or any part thereof: and, in case of any loss or misfortune, it should be lawful to the assured, their factors, servants, and assignees, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the said goods and merchandises, &c., and ship, &c., or any part thereof, without prejudice to that assurance; to the charges whereof they the assurers would contribute, each one according to the rate or quantity of his sum therein assured, &c. &c. : that it was agreed by them, the insurers, [420] that that writing or policy of assurance should be of as much force and effect as the surest writing or policy of insurance theretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London; and so they, the assurers, were contented, and did thereby promise and bind themselves, each one for his own part, their heirs, executors, and goods, to the assured, their executors, administrators, and assigns, for the true performance of the premises, confessing themselves paid the consideration due unto them for that assurance, by the assured, at and after the rate of ten guineas per cent. : that, by a certain memorandum thereunder written, corn, fish, salt, fruit, flour, and seed, were warranted free .from average, unless general, or the ship should be stranded,- sugar, tobacco, hemp, flax, hides, and skins, were warranted free from average under 5; per cent.,-and all other goods, and also the ship and freight, were warranted free from average under 31.: per cent., unless general, or the ship should be stranded; and by a certain other memorandum-thereunder written, it was declared, that, in case of loss, the said policy should be deemed sufficient proof of interest: Averment, that the said policy of insurance and memoranda were so made by the plaintiffs as aforesaid, as the agents of John Gilmour, David Gilmour, Allan G-ilmour of Montreal, James Gilmour, John Pollok, Arthur Pollok, Allan Gilmour of Glasgow, and Robert Rankin, and for their use and benefit, and that the plaintiffs did receive the order for and effect the said policy of insurance as such agents as aforesaid,-of all which premises, the defendant afterwards, to wit, on the 1st of December, 1846, had notice: that thereupon, in consideration that the plaintiffs, at the request of the defendant, had then paid to the defendant a certain sum of money, to wit, the sum of twenty guineas, as a premium or reward for the insurance of 2001. of and in the premises in the said policy of [421] insurance mentioned, and had then promised the defendant to perform and fulfil all things in the said policy contained on the part and behalf of the insured to be performed and fulfilled, the defendant then promised the plaintiffs that he would become and be an insurer to the plaintiffs of the said sum of 2001. upon the premises in the said policy of insurance mentioned on his part and behalf, as such insurer of the said sum of 2001., to be performed and fulfilled; and the defendant then became and was an insurer to the plaintiffs, and then duly subscribed the said policy of insurance as such insurer, for the sum of 2001., upon the premises in the said policy in that behalf mentioned : that the said John Gilmour, David Gilmour, Allan Gilmour of Montreal, James Gilmour, John Pollok, Arthur Pollok, Allan Gilmour of Glasgow, and Robert Rankin, some or one of them, were or was then, and from thence continually afterwards until and at the time of the loss thereinafter mentioned, interested in the premises in the said policy of insurance and memoranda mentioned, to a large amount, to wit, to the value and amount of all the moneys by them ever insured or caused to be insured thereon : and that theretofore, to wit, on the 25th of November, 1846, the said ship or vessel departed and set sail from Quebec aforesaid, on her said voyage, to a final port of discharge in the United Kingdom, to wit, Bristol; and that afterwards, and while the said vessel was proceeding on her said voyage, and before her arrival at any final port of discharge in the said writing or policy of insurance mentioned, to wit, on the 27th of November, 1846, the said vessel was, by the perils and dangers of the seas, and by stormy and tempestuous weather, 1264 STAIN BANK Vt SHEPARD 13C. B.422. and the violence of the winds and waves, driven on the shore, and thereby, and by means of the premises, became bulged, broken, &c., and the said ship then became and was wholly lost, and thereby [422] the premises upon which the defendant became and was an insurer as in the said policy mentioned, became wholly lost,-of all which premises the defendant afterwards, to wit, on the day and year last aforesaid, had notice, and was then requested by the plaintiffs to pay them the said sum of 2001. so insured by him as aforesaid, and which said sum of 2001. he, the defendant, ought to have paid, according to the form and effect of the said policy of insurance, and his said promise and undertaking so by him made as aforesaid: yet that the defendant had disregarded his promise, &c. &c. The defendant pleaded,-first, non assumpsit,-secondly, that the said policy so made by the plaintiffs was not made by them as agents for the...
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