*31]

6207. damages, *subject to the opinion of the court upon the following case:

The ship Wanderer, with forty-four of the eighty-one bales of silk mentioned in the policy, and a general cargo consisting of Indian corn, flour, and other articles, sailed from Leghorn, on the voyage insured against, on the 15th of April, 1846. From the 17th, she suffered bad weather, the effect of which was detailed in the evidence: the water increased in the hold, and, notwithstanding incessant working at the pumps, she, on the 23d, was making twelve inches of water per hour. After throwing overboard a part of the Indian corn, it became necessary, from the state of the ship, to put into Gibraltar, which was done on the 11th of May following. At Gibraltar, several surveys, by direction of the captain, were made of the ship; and it was found to be necessary to unload her cargo. This was done, and the forty-four bales of silk were taken out and examined. Some were found to have sustained no damage; others,-about eleven bales,-were damaged by the sea-water (by reason of the bad weather already mentioned), but were not considered by the surveyors to be incapable of being carried on. These undamaged and partially damaged bales were therefore re-shipped on board the Wanderer when she was repaired, and were conveyed to Liverpool: and, as to those, no question arises. As to the remaining (twenty-three) bales, both parties gave evidence of witnesses at Gibraltar, who had, by direction of the master, surveyed them, and of witnesses in England chiefly engaged in the silk trade. It appeared that, when examined, these twenty-three bales were found to be saturated with sea-water, greatly heated, partly in a state of putridity, and to emit an intolerable stench, which infected the atmosphere for some distance. As to the cause of this stench, the witnesses differed in opinion,

-one ascribing it to the excrement of the *silk-worm, which, in

*32] his judgment, remained in the article called waste-silk, and which,

when wetted by the sea-water, would cause putrefaction in the silk; others, who were of opinion that the excrement of the worm did not necessarily remain in the waste-silk, thought the action of sea-water on waste-silk was alone sufficient to account for the stench.

The witnesses for the plaintiff who had examined the silk at Gibral tar, were of opinion, that, if it had been re-shipped, it would have arrived in England spoiled and perished, and wholly valueless, and have destroyed some other perishable part of the cargo of the Wanderer; that there was no part of any one of those twenty-three bales which could have been properly re-shipped; and that no endeavour to prepare the silk for re-shipment would have been successful.

The witnesses for the defendants examined at Gibraltar were persons who had there bought six of the twenty-three bales, at the sale hereafter mentioned. The purchaser of two of them described them as wholly damaged and spoiled, except about sixty-eight or seventy pounds

in the centre of one of them, which were very slightly damaged,—the whole weight of that bale being about seven hundred and forty pounds, -which sixty or seventy pounds he thought would have been serviceable for the purposes to which waste-silk is usually applied. The purchaser of two of the others had them shipped to England, and sold, he losing about forty dollars by the transaction. The purchaser of one of the others had not been able to re-sell it: it was damaged to the extent of one-third in bulk; the remainder was dry and sound. The purchaser of the rest had sent it to England at a fixed price; but it had not been sold. Of these witnesses, some described the other bales thus-Some of the bales were completely and entirely damaged and spoiled; others had a portion dry and *sound, some to the extent of a third or fourth, others in a much less proportion.

[*33

The English witnesses for the defendants proved, that three of the above bales, and another bought by a purchaser who was not examined, were sold in England as silk; and that, in their opinion, silk in the state in which the above twenty-three bales were described to be, could have been sent to England by steamers, without being dried, and could there have been washed and so dealt with as to retain the character of silk.

The twenty-three bales were sold by the master, under the advice of the surveyors who had examined them, as before mentioned.

The examination of the ship was on the 16th of May,-the day after the ship's arrival. The surveyors recommended the Indian corn to be discharged.

The second examination was on the 19th, when they recommended that the whole of the perishable and light part of the cargo should be discharged, and the vessel further examined. The silk was accordingly conveyed on board a floating store in the bay, and examined on the 23d of May, when the surveyors recommended an immediate sale of the twenty-three bales. Notice of sale by auction was given; and the sale took place, by direction of the master, on the 27th and 28th of May.

The Wanderer was under repair until the 30th of June. On the 2d of July she sailed for Gibraltar; and she arrived at Liverpool on the 20th of July.

Mr. Borella, the person interested in the goods, resides at Manchester. He received no information as to the ship until a few days before her arrival at Liverpool, when he received information that she had put into Gibraltar. On the 27th of July, he received information of the fact of the damage which had been sustained by the silk, and of the. fact of the sale, and the account-sales, in the same letter. *The plaintiff had no agent at Gibraltar.

[*34

The defendants' counsel contended at the trial,-first, that this was an insurance upon the whole eighty-one bales; and that, as all but the

twenty-three in question had arrived at their place of destination, there could be no total loss within the meaning of the policy. The learned judge overruled this objection, and directed the jury that the insurance was to be taken as upon each bale.

Secondly, that, at all events, if the silk could have been put into a state in which it could have been conveyed to England in any other ship, it was the duty of the assured to incur the expense of putting it into such state, and of so conveying it.

The learned judge left to the jury the questions following, to which they returned the answers following:

First, Was the damage to the goods such as to involve total destruction in specie, either actual or inevitable? Answer, that some portion (but what portion they could not say) of each bale would have arrived home without losing its character of silk.

Secondly,-Would a prudent owner uninsured have adopted the course which, in fact, was adopted as to these bales? Answer,-Yes, he would.

Thirdly,-Did the damage to the goods render them such an intolerable nuisance to the rest of the cargo of the Wanderer, that it was reasonably justifiable in the master to refuse to carry them any further in that ship? Answer,-that the damage to the goods rendered them such a nuisance to the ship's crew (but not injurious to the cargo) that it was reasonably justifiable to decline to carry them any further in the Wanderer.

Fourthly,-Was it possible to examine the goods, and, by a reasonable expense, or moderate expense, at Gibraltar, to send them home, so that they would still *bear the character of silk, by some other vessel? Answer,-Yes, by some other vessel.

*35]

The question for the opinion of the court, is, whether the plaintiff was entitled to recover as for a total loss in respect of any, and if any, of how many, of the bales. If he was, the verdict is to stand for such sum as the court shall direct. If he was not, a verdict is to be entered for the defendants.

Barstow, for the plaintiff.(a)-Upon the findings of the jury, as set out in the case, the plaintiff is clearly entitled to recover in respect of the whole twenty-three bales. It appears that these bales were in a state of putrefaction, and therefore the master was justified, by his duty in regard to the health of the crew, in declining to bring them home.

(a) The point marked for argument on the part of the plaintiff, was as follows:-"The plaintiff will contend, that, under the circumstances disclosed by the special case, he is entitled to recover as for a total loss of the twenty-three bales of silk in question."

For the defendants:-"The defendants will contend, that, as part of the subject-matter insured arrived at its place of destination uninjured, there was no total loss within the meaning of the policy; and that, if the uninjured part could have been put into a state in which it could have been conveyed to England, it was the duty of the insured to incur the expense of putting it into such a state, and of so conveying it."

[*36

It will probably be contended on the other side, that it was the duty of the assured to incur the expense of putting the silk in a state to be brought to England. But it is found as a fact, that he had no agent at Gibraltar, and that the master, in the course he adopted, acted bona fide for the benefit of all concerned. In Cocking v. Fraser, Park, Ins. 8th edit. 247, which was an action for a total loss of a cargo of fish, upon a voyage from St. John's, Newfoundland, to a port in Portugal,-the policy containing the usual memorandum declaring fish, &c., free from *average, unless general, or the ship were stranded, the cargo remaining in specie, though by sea-damage rendered of no value, the underwriters were held not liable, there having been no stranding: and Lord MANSFIELD said: "This clause, relative to fruit and fish, is now a very old one in policies of insurance. The insurer undertakes for all loses except particular damage, unless the ship be stranded: he engages against a total loss. What is a total loss? The total loss of the thing insured, is, the absolute destruction of it, by the wreck of the ship. The fish may all come to port; though, from the nature of the commodity, it may be damaged, it may be stinking: still, as the commodity specifically remains, the underwriter is discharged." But Lord KENYON, in Burnett v. Kensington, 7 T. R. 210, said "that he could not subscribe to the dictum of Lord MANSFIELD, in Cocking v. Fraser, that, if the commodity specifically remain, the underwriter is discharged." Cocking v. Fraser was also considered in Dyson v. Rowcroft, 3 Bos. & Pull. 474, where the court adopted the doubt thrown upon the case of Cocking v. Fraser, in Burnett v. Kensington. Dyson v. Rowcroft was the case of a policy on fruit from Cadiz to London, with the usual memorandum. In the course of the voyage, the fruit was so much damaged by sea-water, that it became rotten, and stunk; and, on the ship's arrival at an intermediate port, into which she was driven, the government of the place prohibited the landing of the cargo. The ship also, being too much damaged to proceed on the voyage, was sold, and the cargo was necessarily thrown overboard. It was held that the assured were entitled to recover as for a total loss. Cologan v. The London Assurance Company, 5 M. & Selw. 447, is also in point. There, a cargo *of wheat, fish, and staves, was insured at and from Quebec to Teneriffe, the policy containing the usual memorandum as to corn and fish being free from average, unless general. The ship was captured, and afterwards recaptured, and sent by the recaptors to Bermuda, where, a scarcity prevailing, an embargo was laid on the export of provisions; and, the cargo being landed, it was found that 585 bushels of wheat were so damaged by sea-water that they were, by order of the magistrates, for the sake of the public health, thrown overboard; and, other part of the wheat being damaged, the captain. sold that part, and the fish (which sold at a profit), and put up the ship to sale, and purchased her for the benefit of the owners, at not

[*37

more than one-fourth of her value; and, having repaired her, and being refused permission to ship the remaining wheat to Teneriffe, he directed it to be sold, and purchased it for the benefit of those concerned; and, by leave of the governor, the embargo being then raised as to the West India islands, shipped the same for Madeira, where he arrived, and delivered it, taking in there a cargo of wine for London, with which he arrived: and it was held that the assured, who had abandoned, upon receiving intelligence of the circumstances which happened previously to the time of the ship's being permitted to proceed to Madeira, were entitled to recover as for a total loss of the whole of the goods insured. (a) [CRESSWELL, J.-The form of the policy excluding average loss, places you in this difficulty. Can it be said that this silk was totally lost when at Gibraltar? It is another thing to say it was not worth the expense of bringing home.] The case *38] *certainly states that it existed in specie as silk. [MAULE, J.— Not only did it exist in specie, but it was of some value,—it was sold as silk. Can it, then, be said to have been totally lost?] If its condition was such as to justify the master in selling it, it was totally lost to the owner. In Gernon v. The Royal Exchange Assurance Company, 6 Taunt. 383 (E. C. L. R. vol. 1), it was expressly held, that if a cargo be so much damaged that it is not fit to be sent forward to a market, the assured may abandon, as a total loss. [MAULE, J.-That was not the case of an assurance free from average.] If the cargo is so damaged by a peril insured against, that no prudent master would bring it home, the loss is total. [WILDE, C. J.-Is the cargo unfit to proceed, when a little expense may restore it? CRESSWELL, J.-What amount of injury to the silk would have justified the assured in treating it as a total loss? Would 80 or 90 per cent. ?] Probably not. [CRESSWELL, J.-Neither would 99 per cent.: to charge the underwriters upon such a policy as this, there must be an actual total loss. Davy v. Milford, 15 East, 559, is very much like this case: there, the policy was effected on flax, valued at so much, and warranted free of particular average; and it was held, that, the vessel being wrecked, and the assured not having abandoned, but having laboured to save the cargo, and having in fact saved a part (one-sixteenth), though much damaged,-they were entitled to recover as for a total loss of that part which was in fact totally lost, but not for the rest, which was saved to them in specie, though deteriorated.] Parry v. Aberdein, 9 B. & C. 411 (E. C. L. R. vol. 17), 4 M. & R. 343, shows that that is not the true test. There, a vessel, having goods on board upon which an insurance was effected, but which were war

(a) Lord ELLENBOROUGH begins his judgment in that case thus,-"This seems to me to be a case of total loss, and on this ground, that, by the capture, a total loss occurred in the first instance, and, while the assured had no reason to believe that events had changed the nature of the loss, they abandoned."