Thompson and Others v Hopper

14314 . 6HL&BL937. THOMPSON V. HOPPER LI 13 [937] robert thompson, joseph lowes thompson and john thompson against thomas duck hopper. Wednesday, November 12th, 1856. Action on a time policy on a ship for a total loss. Plea: that the plaintiffs knowingly, wilfully, wrongfully and improperly sent the ship to sea in a condition in which it was dangerous to go to sea, and suffered her to remain in that state near the shore, during which time, by reason of the premises, the loss occurred. Issue thereon. On the trial, it appeared that the plaintiff personally sent the ship out to sea in an uDseaworthy state, aud caused her to anchor in the offing in that state. Whilst there aba was caught in a storm from seaward, and driven ashore. There was evidence justifying the jury in finding that the unseaworthiness had been made good before the loss, and that the immediate cause of the loss was not occasioned in any way by the unseaworthiness; and, the jury having found that such was the fact, a verdict was entered for the plaintiffs. There was evidence from which the juiy might have drawn the conclnsion that, though the unseaworthiness was not the immediate cause of the loss, the loss would not have occurred if the ship had been seaworthy when she went to sea. No question on this was left to the jury.-Held, that the plea was proved, if that misconduct of the plaintiff occasioned the loss, though it was not its immediate cause; and a new trial was granted on this ground. [See S. C. in Exchamber Chamber, El. Bl. & El. 1038.] The declaration contained two counts on separate time policies on the ship " Mary Graham." In each the loss wag alleged to be by perils of the sea. Fleas to the first count. 1. That the ship was at the time of the policy lying in a British port, the residence of tfce plaintiffs, her owners, and was by them sent to sea in an unseaworthy state; and whilst in that state she was lost. 2. That the plaintiffs, knowingly sent her to sea in an unseaworthy state; and that whilst in that state she was lost whilst in that condition. 3. That the plaintiffs knowingly, wilfully, wrongfully and improperly seut tbe ship " out to sea in an unaeaworthy state, and when she was not fitted for the voyage, and when she was not in a fit and proper condition safely to go to sea, aud at a time when it was dangerous for the ship to go to sea in the state and condition in which she then was. And plaintiffs wrongfully and improperly caused and permitted the said ship to be and remain on the [938] high seas near to the sea shore, for a great length of time, in the state and condition aforesaid, and without a master and without a proper crew to manage and navigate her on her said voyage; during which time the said ship, by reason of the premises, became and was wrecked and wholly lost." Fleas 4, 5 and 6 were pleas to the second count, corresponding respectively to pleas 1, 2 and 3 to the first count. There waa a demurrer to all the pleas ; and issues were also joined on them. Judgment was given in last Hilary Vacation on the demuirer: for the plaintiffs on the first, second, fourth and fifth pleas ; and for the defendant on the third and sixth (a). On the trial of the issues in fact, before Bramwell B., at the last Summer Assizes for Durham, it appeared that at Sunderland vessels take in coals in the dock from the staith. From the manner in which coals are put on board a ship there, it is necessary to east loose the standing rigging on the side next the staith, so as to be able to remove it ont of the way of the crane. This deprives the masts of the vessel of the support which they would otherwise derive from the rigging; and it is impossible to set sail upon such a vessel till the rigging is again made fast: but of course, whilst the vessel is in dock, it is not important that she should be able to set sail. Vessels going out of the Sunderland Dock pass over a bar into an open roadstead, exposed to the east. It is not unusual for vessels going to sea to be taken across that bar at high water, though not quite ready for sea, so aa to save the tide, and to wait in the roadstead to complete their equipment. Should the wind blow hard from the east whilst they are in this roadstead, they [939] would be embayed on a lee shore, and consequently iu a situation of great danger; but if on the commencement of the gale the vessel sets sail, and gets out to sea, that danger is escaped. The " Mary Graham," the subject of the present policies, had been chartered to take a cargo of coals from (a) See Thompson v. Hopper, ante, p. 172, where the pleadings are set out at length. 1114 THOMPSON V. HOPPER 8 BL. & BL. MO, Sunderlaud to Constantinople. SEe was in Snnderland Dffck loading her cargo; and the standing rigging on her larboard side, which was that next the ataith, was cast loose in the usual manner. On the 22d of November, 1854, her loading was completed. There were apprehensions that if she did not get to sea that tide she would be neaped and obliged to wait in dock till the next spring tides: for that reason she was taken out that tide at high water, about 4.30 p.m., without waiting to make fast the standing rigging. Two of the plaintiffs who were resident at Sunderland come down to the dock and taw her go out; one of them was on board her at the time she was towed over the bar. She was taken out in the roadstead and anchored with a good offing, with a single anchor, in 14 fathoms of water, with about 45 fathoms of chain cable out. At this time the larboard standing rigging was still loose; several lumpers were left on board making it fast, an operation which might be completed in a few hours; and the plaintiff who was on board then left the vessel. The captain came on shore in a boat, leaving a pilot on board, who was a person of competent skill. One point made at the trial was that the subsequent loss was owing to the absence of the captain; but ultimately nothing turned on this. At this time the wind was from the west; but there were symptoms, from which it might have been known that an easterly gale was coming on: it did not, however, appear that either the [940] plaintiffs or any of the persons on board the vessel had observed them. It came on to blow very hard from the east; and about midnight the " Mary Graham" went ashore, and was dashed to pieces. The pilot, the whole of the crew, and all the lumpers but one, perished. This one man who was saved was called as a witness for the defendants at the trial. The facts occurring before the plaintiffs' boat left the vessel was scarcely in controversy at the trial; what happened afterwards could only be known from the testimony of this surviving witness, and the circumstantial evidence derived from the appearance of the wreck. It appeared by the account given by the witnets that the crew had endeavoured to weigh the anchor, but were unable to do so, owing to the heavy sea and the pitching of the vessel. They then endeavoured to let the cable slip; but the chain cable had got entangled, or, as it is technically called, had links in it, and could not be let slip. The witness, who had himself assisted in the vain attempt to get the chain disentangled, gave his evidence that the chain from its condition must have been so entangled as to be unfit for use before the vessel left the dock; but there was evidence that it had been overhauled and was then in good order. One of the plaintiffs, having been personally on board the vessel when she sailed, had the opportunity of seeing the chain ; but it was not shewn that, supposing the ship was unseaworthy on this account, the plaintiffs or either of them had observed it. When the attempt to slip the cable failed, the carpenter endeavoured to knock out the pin which held together the links: he was unable to do so; whilst attempting it, he was repeatedly washed away. The witness gave his evidence that the pin must have been rusted, as if it [941] had been clean the carpenter could have knocked it out: but the chain itself came ashore with the wreck; and the pin in question was produced in court. It was of galvanized iron, not capable of rusting, and not rusted ; it was slightly bent from the blows, but could still be knocked out; and it was argued for the plaintiffs that the failure of the carpenter was not attributable to the bad state of the chain, but to the breaking sea, which knocked him away. The crew than attempted to cut the chain with a cold chisel, of which the chain when driven ashore bore marks, but without success. At last the chain broke close to the anchor: the vessel, having 45 fathoms of chain cable dragging upon her bow, was unmanageable, and was driven on the rocks. The witness gave his evidence that the standing rigging had not been made fast at the time the cable broke; but it was clear that the crew had previously endeavoured to cut the cable ; and it was argued that they would never have done so if they knew that the vessel was not in a state to set sail. There were other facts: but it is sufficient for the purpose of explaining the case to state the above, which were the important facts. The learned Judge summed up at considerable length, pointing out to the jury tke bearing of the evidence. He asked the jury to answer, as facts, six questions: 1st. Whether the plaintiffs sent the vessel to sea? 2d. Whether they sent her to sea at a time when she was not in a fit and proper condition to go to sea, and at a time when it was dangerous for a ship to go to sea in the state and condition in which she then was? 3d. Whether she was seaworthy when she left the harbour? 4th. Was she lost through unseaworthiness 1 5th. Did [942] the plaintiffs know the facts which 6 EL * Bt 943. THOMPSON V. HOPPER 1115 made her...