De Vaux against Salvador

de vaux against salvador. Tuesday, January 14th, 1836. Insurance on a ship, "V.," with the usual warranty as to average. The ship having come into collision with another ship, and proceedings being instituted for the damage done to the other ship, the matter was referred to arbitrators, who awarded that each ship should bear half of the aggregate loss. The ship " V." on the settlement had to pay a balance to the other ship: Held, not to be a loss to which the underwriters were liable. Held, also, that the expense of the wages (a)1 See Reg. Gen. Hil. 4 W. 4, General Rules and Regulations, 7. (a)2 5 Taunt. 164. The third plea was nil debet; and Mansfield C.J. said that the substance of the second plea must have been tried on the issue upon the nil debet. (c) Lord Denman C.J., Littledale, Williams, and Coleridge Js. (d) 2 Wms. Saund. 319 a. See 2 Chitty's Archbold, 3d ed. pp. 984, 985. Vivian v. Jenkin, 3 A, & E. 741, 750. 846 DE VAUX V. SALVADOR 4 AD. & B. 421. and provisions of the crew of the " V.," during the time that she was detained in repairing damage done to herself by perils of the sea, were not such a loss. [S. C. 6 N. & M. 713; 5 L. J. K. B. 134. Eeferred to, Xenos v. Widcham, 1867, L. R. 2 H. L. 315. Applied, Inman S.S. Company v. Bischoff, 1882, 7 App. Gas. 686. Dictum adopted, Stoomvaart Maatschappy Nederland v. Peninsular and Oriental Steam Navigation Company, 1882, 7 App. Gas. 804. Eeferred to, London Steamship Owners' Insurance Company v. Gampian S.S. Company, 1889-90, 24 Q. B. D. 37, 663. Explained and applied, Field S.S. Company v. Burr, [1898] 1 Q. B. 826; [1899] 1 Q. B. 589. Referred to, The North Britain, [1894] P. 81.] Assumpsit on a policy of insurance for time on the ship "La Valeur." The declaration claimed for general average, and for an average loss; the damage was laid to have been occasioned by perils of the sea. The policy contained the usual warranty, free from average under three pounds per cent., unless general, or the ship be stranded. The defendant, as to the claim of particular average, pleaded that the ship did [421] not sustain an average loss or damage to the amount of 3 per cent., on which plea issue was joined. On the trial before Lord Denmaii C.J. at the London sittings after last term, it appeared that the "La Valeur," being in the Hoogly River, during the time covered by the policy, came into collision with a steam vessel called the " Forbes," and that considerable damage was done to each vessel. The owner of the "Forbes" claimed a compensation from the "La Valeur," and threatened to detain her, and to proceed in the Court of Admiralty at Calcutta; and, upon the claim being referred to arbitration, it was awarded that each ship should bear half the joint expenses of the two. Upon the settlement, the "La Valeur " had to pay a balance to the "Forbes." The "La Valeur" was detained by the necessity of repairing certain damage done to herself by perils of sea; and, during the time of detention, a sum of money was expended in the additional wages of the crew arid provisions for them. If either this sum of money or the balance paid to the "Forbes " could be considered a particular average, then there was on the whole an average loss of 3 per cent., but not otherwise. The Lord Chief Justice was of opinion that neither of these items could be taken into the account of particular average; and a verdict was found for the defendant on the above issue. Maule now (a) moved for a rule to shew cause why a verdict should not be entered for the plaintiff for such sum as the Court should direct, or why a new trial should not be had. It is clear that the aggregate [422] of several partial losses may make up the 31. per cent.; Blackett v. The Royal Exchange Company (2 Cr. & J. 244. 2 Tyrwh. 266). Here the 31. per cent, will be made up if either of two items be allowed. First, the underwriters are liable for the sum paid to the "Forbes." The words in the policy are, "All other perils, losses, and misfortunes that have or shall come, to the hurt, detriment, or damage of the said goods and merchandizes and ship, &c., or any part thereof." There is, indeed, no English decision precisely on the point; but there seems to be as good reason for underwriters making good suuh loss as a loss sustained from pirates. [Littledale J. That loss is particularized.] But it would clearly be the subject of indemnity, though not particularized. A general average comes within the insurance only from the general words. The expression "free of average, under three pounds per cent., unless general," shew this; for general average is specified as an exception from the exception : it must therefore be included in the subject matter from which the main exception is made, that is, in the perils insured against. But among these perils there is no specific mention of general average : the general words therefore cover that, and the same words must also be sufficient to cover any loss by an accident like that in question. The principle is, that the underwriter makes good all that, by means of the peril, the owner is bound to pay : and here he was, in fact, as much bound to pay as the owner of goods is bound to pay harbour duties; for the owners of the "Forbes" had the legal means of enforcing the payment. It is true that, by the English common law, each party bears [423] his own costs, in case of a collision, if there be fault in each ; and it must certainly be assumed that there was fault on each side, in the present case. But the more generally understood law in maritime States is that, if there be fault in each party, each bears half of the aggregate loss of the two ; and this may perhaps bo considered the more reasonable principle. In the (a) Before Lord Denraan C.J., Littledale, Williams, and Coleridge Js. 4 AD. &E.4M. DB VAUX V.SALVADOR 847 case of The Woadrop-Sims (2 Dods. Adra. Eep. 85), this rule was laid down by Sir William Scott, as follows:-"This is one of tbose unfortunate cases in which the entire loss of a ship and cargo has been occasioned by two vessels running foul of each other. There are four possibilities under which an accident of this sort may occur. In the first place, it may happen without blame being imputable to either party; aa where the loss is occasioned by a storm, or any other vis major: in that case, the misfortune must be borne by the party on whom it happens to light; the other not being responsible to him in any degree.-Secondly, a misfortune of this kind may arise where both parties are to blame; where there has been a want of due diligence or of skill on both sides: In such a case, the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them.- Thirdly, it may happen by the misconduct of the suffering party only ; and then the rule is, that the sufferer must bear his own burthen.-Lastly, it may have been the fault of the ship which ran the other down ; and in this case the injured party would be entitled to an entire compensation from the other." In the Laws of Oleron (15 Viii. Abr. tit. Master of a Ship (A), 27, p. 340), [424] it is said, " If a ship in her voyage, lying any where at anchor, be struck or grappled with another vessel under sail, for want of good steering whereby the vessel at anchor is prejudiced, and the goods in her damnified ; in such a case the whole damage is to be in common, and to be equally divided and appraised half by half. And the master and mariners of the...