B. Of the English Doctrine of Loss at an Intermediate Port. The principles which we have already considered relative to the duty of the master to forward goods from an intermediate port to the port of destination, apply with still greater force to memorandum articles. If the underwriters are not liable if the goods finally arrive in specie, it would follow that it is the duty of the master if possible to effect that object by carrying them on. But if they must be of value on arrival, then to determine whether they should be carried on, the expense of so doing must be taken into consideration. As long as the rule of an existence in specie at the port of destination prevailed, the underwriter was not liable, if the voyage was broken up at the intermediate port, merely because the goods were not worth bringing on. This doctrine was attacked at various times by different judges, but was not distinctly overruled till within a compara 1 Cocking v. Fraser, Park on Ins. 151, Marsh. on Ins. 227, is one of the earliest cases on this subject. The vessel, loaded with fish, was bound to Figara in Portugal, and put into Lisbon in distress. The fish were of no value, and the voyage was therefore broken up, though the ship might have proceeded to her port of destination with the cargo. This was held not to be a total loss. Dyson v. Rowcroft, 3 B. & P. 474, is sometimes referred to as contravening the doctrine of Cocking v. Fraser, but an examination of the facts of the case will show that the cases are entirely consistent. The ship put into an intermediate port so much damaged that repairs were necessary to enable her to proceed on her voyage. To make these repairs it was necessary to unlade the cargo. But the cargo was so much damaged that it was injurious to the health of the crew, and the government refused to allow it to be landed. It was therefore thrown overboard. This was held to be a total loss. So, in Cologan v. London Ass. Co., 5 M. & S. 447, where the vessel was captured, and recaptured and sent into Bermuda, but was not allowed to proceed to her port of destination, and the cargo was therefore sold, it was held to be a total loss. In Anderson v. Royal Exch. Ass. Co., 7 East, 38, the vessel was under water for more than a month. The cargo was then recovered, and kiln-dried, but not sent on, although it might have been. The court held that if the abandonment had been made while the goods were under water, there would have been a total loss, but otherwise, not. In Parry v. Aberdein, 9 B. & C. 411, the goods were so much damaged at the intermediate port, that they would have been worthless on arrival, and no ship could be obtained to take the goods on. This was held to be a total loss. See also, Gernon v. Royal Exch. Ass. Co., 6 Taunt. 383. In Thompson v. Royal Exch. Ass. Co., 16 East, 214; and in Hedburg v. Pearson, 7 Taunt. 154, it did not appear but what the cargoes might have been taken on. The underwriters were held not to be liable. tively recent period. The present rule of the English courts is stated with so much clearness by Lord Abinger, C. B., in the leading case on this subject, that we are disposed to give it in his own words: "If the goods are of an imperishable nature, if the assured become possessed, or can have the control of them, if they have still an opportunity of sending them to their destination, the mere retardation of their arrival at their original port may be of no prejudice to them beyond the expense of reshipment in another vessel. In such a case, the loss can be but a partial loss, and must be so deemed, even though the assured should, for some real or supposed advantage to themselves, elect to sell the goods where they have been landed, instead of taking measures to transmit them to their original destination. But if the goods once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, are, by reason of that damage, in such a state, though the species be not utterly destroyed, that they cannot with safety be reshipped into the same or any other vessel; if it be certain that, before the termination of the original voyage, the species itself would disappear, and the goods assume a new form, losing all their original character; if, though imperishable, they are in the hands of strangers not under the control of the assured; if, by any circumstance, over which he has no control, they can never, or within no assignable period, be brought to their original destination; in any of these cases the circumstance of their existing in specie at that forced termination of the risk, is of no importance. The loss is, in its nature, total to him who has no means of recovering his goods, whether his inability arises from their annihilation or from any other insuperable obstacle." It then becomes the duty of the master to send on the goods only when they can be of value on arrival. But it is obvious 1 Roux v. Salvador, 3 Bing. N. C. 266, which we have had frequent occasion to mention, is an important case on this point. A cargo of hides was insured free of average on a voyage from Valparaiso to Bourdeaux. The ship put into Rio Janeiro in distress. The hides were in a state of incipient putridity, and it was impossible to take them to Bourdeaux, because they would have become entirely rotten, and would have lost the character of hides before they arrived. They were therefore sold. And it was held that the underwriters were liable. that the master is not obliged to incur every expense, however great, to effect this object; and the question soon arose as to what was his duty in this respect. At first, the court laid down the rule cautiously, but not very definitely, and held that if the goods could be sent on in a reasonable time and at a reasonable expense, the master was bound to do it. The inconvenience of having a rule dependent upon what the jury might in each case find to be a reasonable time and a reasonable expense, being very great, the courts established a rule which is practical, and can be applied to the generality of cases with the same result. It is this. All the expenses at the intermediate port are to be added to the extra freight, if the transit cannot be effected at the same rate of freight, and if this exceeds the value of the goods on arrival, the loss is total; if not, it is partial only.2 1 Navone v. Haddon, 9 C. B. 30. The vessel in this case put into an intermediate port in distress. Part of the cargo, which consisted of bales of waste silk, was sold on account of damage, the rest arrived at the port of destination. The court seem to have acted on the supposition that if some of the bales were totally destroyed, the insured might recover for them (a question we have already considered), and it became important therefore to consider the condition of the bales which were sold. And being of the opinion that a reasonable expense would have enabled the master within a reasonable time to have dried the goods, and forwarded them, the court held that the loss was not total. 2 In Reimer v. Ringrose, Exch. 263, 4 Eng. L. & Eq. 388, the cargo, consisting of corn, was taken out at an intermediate port, in order that the ship might be repaired, and being found to be much damaged, was sold. The jury found that the corn might by the exercise of reasonable and proper care, have been brought home and sold as damaged corn. And the court held that as the expenses of bringing it home did not exceed the value when brought home, the loss was not total. In the subsequent case of Rosetto v. Gurney, 11 C. B. 176, 7 Eng. L. & Eq. 461, the vessel sailed from Odessa with a cargo of wheat on board, bound for Liverpool. She was stranded near Odessa, and to obtain funds for repairs a bottomry bond was given. When the vessel arrived near the Cove of Cork, it became necessary to run her ashore. She was afterwards towed into the Cove of Cork, and salvage claimed. The vessel and part of the cargo was sold by order of the Admiralty Court, and the proceeds divided between the salvors and the holders of the bottomry bond. The jury found that the cargo was much damaged, but might have been dried and carried on, at a reasonable expense, and also that it would not have been prudent for an uninsured owner to have entered into a controversy with the salvors, and the holder of the bottomry bond in the Court of Admiralty. By direction of the court, the jury found for the plaintiff. On a motion for a new trial the court said: "The question to be submitted to the jury will be, was it 'practicable' to send the whole or any part of the cargo to its place of destination, Liverpool, in a marketable state? To determine this C. Of the American Doctrine of Loss at the port of Destination. The rule in this country on this subject was early established, at the time when the case of Cocking v. Fraser,1 was recognized as an authority in England. It is, therefore, well settled that if the goods insured arrive at the port of destination existing in specie, the underwriters are not liable, although they are of no value whatever.2 Some question has arisen as to the meaning of the word specie. The primitive meaning of the word is, undoubtedly, appearance, and it is in this sense, that it is commonly question, the jury must ascertain the cost of unshipping the cargo, the cost of transshipping it into a new bottom, the cost of drying and warehousing it, and the cost of the difference of the transit, if it can only be effected at a higher sum than the original rate of freight. Add to these items the salvage allowed in proportion to the value of the cargo saved, and the loss will be total, if the aggregate exceed the value of the cargo when delivered at Liverpool, the port of discharge; but if the aggregate do not so exceed the value of the cargo, or of that part of it saved, the loss will be partial only." 1 Park, Ins. 151, Marsh. Ins. 227. 2 In Morean v. United States Ins. Co., 1 Wheat. 219, 3 Wash. C. C. 256, memorandum articles were insured on a voyage from Cape Henry to Lisbon. The vessel was wrecked within the port of Lisbon, and part of the cargo carried to that city and there sold. Mr. Justice Washington said: “If the property arrive at the port of discharge, reduced in quantity or value to any amount, the loss cannot be said to be total in reality, and the insured cannot treat it as a total, and demand an indemnity for a partial loss. . . . . The only question that can possibly arise, in relation to memorandum articles, is, whether the loss was total or not; and this can never happen where the cargo, or a part of it, has been sent on by the insured, and reaches its original port of destination." See also, Brooke v. La. State Ins. Co., 16 Mart. La. 640, 681, 17 id. 530; Skinner v. Western Marine & F. Ins. Co., 19 La. 273. .... In Robinson v. Commonwealth Ins. Co., 3 Sumner, 220, 224, Mr. Justice Story said : "If the schooner had arrived at the port of destination, with the cargo on board, physically in existence, the plaintiff would not have been entitled to recover, however great the damage might have been by a peril insured against, even if it had been ninety-nine per cent., or in truth even if the cargo had there been of no real value." Nor does this doctrine conflict with the case of Williams v. Cole, 16 Maine, 207, as has been sometimes supposed. This was a case of insurance upon a cargo of potatoes from Frankfort to Baltimore. The policy contained a clause that certain articles, together with such as are esteemed perishable in their own nature, were warranted free from average, unless it amounted to seven per cent. On the arrival of the vessel at Baltimore, the hatches were opened and the potatoes were found to be entirely rotten. The mayor of the city ordered the cargo to be carried below the fort, and to be thrown overboard. This was held to be a total loss, on the ground that the cargo existed merely as a nuisance, but it must also be remembered that under the policy, the underwriters were answerable for a loss equal to seven per cent. applied to memorandum articles. Thus, if the box of a chariot is lost and nothing but the wheels remain, these cannot be said to have the appearance of a chariot, and consequently, the article no longer exists in specie, and the underwriters are liable as for a total loss with salvage. But it has been held, that the value of the article has nothing to do with its existence in specie. Thus, fish, though absolutely spoiled,2 and corn which was putrid,3 were both held to exist in specie. And pork has been held not to lose its identity by being roasted.1 D. Of the American Doctrine of Loss at an Intermediale port. By far the most difficult questions on this subject have arisen, in determining what is a total loss at an intermediate port. We shall here consider the law only as determined by the American authorities generally, for if the fifty per cent. rule applies to any kind of memorandum articles, as has been held in Massachusetts, they will be governed by the same rules as are applicable to other goods, and need not be considered here. In New York, the dictum of Lord Mansfield in Cocking v. Fraser, has been followed to its fullest extent, and the rule in that State is, that if the goods exist in specie at the intermediate port, the insured is not entitled to recover. It is true, that in some of the cases in that State, there were facts which clearly showed that the loss was not total, and that the goods could 1 Judah v. Randal, 2 Caines, Cas. 324. 2 Cocking v. Fraser, Park, Ins. 151, Marsh. Ins. 227. The action was on a valued 8 Neilson v. Columbian Ins. Co., 3 Caines, 108. Skinner v. Western Marine & F. Ins. Co., 19 La. 273. policy on pork in bulk, beans, and flour, valued at $3,480. until the flat boat, in which the cargo was shipped, was landed safely in the port of New Orleans. On the way, the boat took fire about nine miles above the city, and was burned to the water's edge. The bottom, however, floated down to New Orleans with some of the pork on board in a damaged, barbecued condition. The quantity thus saved, was 7,723 pounds. It was represented by the port-wardens, as damaged more or less by fire, and unmerchantable, and it was sold at the rate of 23 cents per pound. This was held not to be a total loss, on the ground that roasted pork was still pork. 5 Kettell v. Alliance Ins. Co., Sup. Jud. Ct., Mass., March T., 1858, cited ante, p. 338, n. 2. 6 Park, Ins. 151, Marsh. Ins. 227. |