1803. DYSON and Others nature, and consequently not within the memorandum. In this case, not only was the cargo destroyed, but the ship itself was sold, in consequence of the damage sustained at sea; which circumstances distinguish the present case from that of Cocking v. Fraser, Park, 114.; for as the case there states that the ship RowCROTT. did not proceed to Figara, the place of her destination, it may be inferred that she was able to proceed; and indeed it does not appear that there was any thing to prevent the cargo being carried to the port of discharge. In M'Andrews v. Vaughan, Park, 115, where, after capture and recapture, a cargo of fruit was brought to the port of destination, but had sustained damage i to the amount of 80 per cent., Lord Kenyon said, that to entitle the assured to recover, either the voyage must be lost, or the cargo wholly and actually destroyed. Now here, if it be con- ata te down tended that the cargo was not wholly and actually destroyed, by a peril insured against, still the voyage was lost. Indeed Lord Kenyon, in the case of Burnett v. Kensington, 7 T. R. 222, ob- sexidade serves, that he cannot subscribe to the dictum of Lord Mansfield in Cocking v. Fraser, that if the commodity specifically remain, the underwriter is discharged. Bayley, Serjt. for the Defendant. The object of the memorandum was to exempt the underwriters from particular average, unless the ship be stranded, but if a stranding take place, they are as much liable to particular average as if the memorandum had not been introduced, and the observation of Lord Kenyon, in Burnett v. Kensington, upon the case of Cocking v. Fraser, is founded upon that distinction; for if the ship be stranded, the underwriters are equally liable, whether the cargo remain in specie or not. The distinction therefore, between a total and a partial loss, as taken in Cocking v. Fraser, remains unimpeached if the thing insured be absolutely destroyed, it is a total loss; but if it specifically remain, though of no value, it is an average loss. Though it might be necessary in the present case, to throw the cargo overboard, it does not appear that such necessity arose from any of the perils insured against. When the ship arrived at Santa Cruz the cargo was in existence, and the act of the crew in throwing it overboard, cannot vary the respective rights of the assured and the underwriters. In Cocking v. Fraser, though the ship did not proceed to her place of destination, and the cargo was so much damaged as to be rendered of no value in the middle of the voyage, still the assured were not allowed to recover. That case, therefore, is decisive of the [476] present. Lord 1803. DYSON and Others, บ. ROWCROFT. Lord ALVANLEY, Ch. J. If I understand the policy as restrained by the memorandum, the underwriter agrees, that all commodities shall arrive safe at the port of destination, notwithstanding the perils insured against; but that he will not be liable to pay for any partial loss on fish, or the other articles contained in the memorandum, because those commodities being liable to deterioration from many circumstances independent of the peril insured against, he would continually be harassed with claims for partial loss alleged to have arisen from the perils mentioned in the policy. Unless therefore the consequence of the damage sustained be the total loss of the commodity, the underwriter does not agree to be answerable; but if the commodity be totally lost to the assured, he undertakes to pay. If this be not the meaning of the memorandum, it is badly expressed ; and the underwriters would have done better if they had said, that they would not be answerable unless the commodities enumerated actually went to the bottom. The qustion is, What is a total loss? I admit that the circumstances of cases like the present are generally suspicious. If the voyage be protracted, deterioration necessarily takes place; and it becomes the interest of the captain and mariners to turn the injury into a total loss. But this is matter for the consideration of the jury. We ought, indeed, to look at the case with some suspicion, where there is so much temptation to throw the cargo overboard. But here it is found that the necessity of so doing arose from sea-water shipped during the course of the voyage; and that the commodity was in such a state that it could not be suffered to remain on board consistently with the health of the crew. In conse quence of this necessity, therefore, the commodity was annihilated, by being, thrown overboard. Had it not been so annihilated, it would have been annihilated by putrefaction; and is it not as much lost to the assured by being thrown overboard, as if the captain had waited until it had arrived at complete putrefaction? The case of Cocking v. Fraser was the only thing which raised any doubt in my mind; and it is certainly a very strong case. But the authority of that case is much shaken by the observation of Lord Kenyon upon it, in Burnett v. Kensington. I suspect that the words "of no value," applied to the cargo in the case of Cocking v. Fraser, are somewhat too large, and that the fact was not that the cargo was in such a situation as to make it impossible to preserve it, but that it was so much damaged as to be no longer valuable to the owners, because it was not worth carrying to the port of destination. Lord Kenyon, speaking of Cocking Cocking v. Fraser, says that he cannot subscribe to the opinion there given, that "if the commodity specifically remain, the underwriter is discharged" (a): I think myself therefore at liberty to consider the case of Cocking v. Fraser, as something less strong than it appears to be. The question then is, Whether the loss which has happened be not as much a total loss as if the waves had carried the cargo overboard, or as if it had been directly prevented from arriving at the port of destination, by some of the perils insured against? I never have understood that the underwriters insure fish against no perils which do not end in a total annihilation of the commodity. When the loss arises from capture, the commodity remains in existence in the hands of the enemy; and yet this loss is as much within the policy as a loss arising from the wreck of the ship. I must now take it, that the circumstances under which the cargo in this case stood, were such that sea-damage had so operated as to make it impossible for the captain to keep it any longer on board. Whether the cause of the loss were direct or indirect, it produced a total annihilation of the commodity. HEATH, J. On looking over this case, it appears to me that, it is not so strongly stated on the part of the assured as the facts would have warranted; for it is not said that the cargo was necessarily thrown overboard. Now it is clear that it was necessary the ship should be repaired, and that the Portuguese government would not suffer it to be landed; yet the ship could not be repaired unless the cargo was removed. The evidence, therefore, appears to me to warrant the conclusion that the cargo was necessarily thrown overboard. On this ground I have no difficulty in concurring in opinion with my Lord, that the case does not fall within the exception of the memorandum, and is not governed by the case of Cocking v. Fraser. Had we thought it the same in circumstances as Cocking v. Fraser, it would have been necessary for us to consider how far that case has been impeached by the subsequent observations of Lord Kenyon in Burnett v. Kensington. ROOKE, J. We must now take it from the facts stated in this case, that the cargo was so deteriorated as to make it necessary that it should be thrown overboard. The loss therefore was total; the voyage was defeated, the ship was unable to proceed, and the government of the island would not suffer the cargo to be landed. The injury was occasioned by tempestuous weather; the loss was total, and therefore I think the Plaintiff entitled to recover. 1803. DYSON and Others v. ROWCROFT. CHAMBRE, J. The case is not stated so strongly as the evidence seems to warrant, It is said that the cargo stunk so much that the government of the country prohibited its being landed; but it might have been stated that it was inconsistent with the health of the crew that it should remain on board, or that it was necessarily thrown overboard. The ship is expressed to have been so much damaged that she could not proceed, but was sold; now this must certainly have made a complete end of the voyage. We do not construe special cases so strictly as we do special verdicts; on the whole, therefore, it seems to me that the loss was total; and though the cargo might be said to exist in specie, yet in value it did not exist at all. If that be so, the inference of law is plain. What is it against which the underwriters protect themselves, by the memorandum? against partial damage. For what reason? because as the commodities enumerated are perishable in their nature, it might be impossible to ascertain, with exactness, what part of the loss arose from the nature of the commodity, and what from sea-damage. If ever there was a case of total loss, it certainly is the present. Lord ALVANLEY, Ch. J. then observed, that the Court considered the case, as stating, that the cargo was neessarily thrown overboard. LEATHAM and Others, Exeeutors of LEATHAM, v. HIS was an action for money had and received, which came 1803. June 29th. A. having effected one po licy on ship and another on freight, and the ship having been detained by embargo in Russia, he abandoned the ship to the underwriters on ship, and the freight to the underwriters on freight, at the same time receiving an authority from the underwriters on the ship, to act for them, and endeavour to re cover it. The the time of the On the 29th of October 1800, the Defendants, being part owners of the ship Manchester, on behalf of themselves and the other owners, effected a policy of insurance on the freight of the said ship, at and from St. Petersburgh to the ship's port of discharge, between Peterhead and the Downs, with liberty to the assured to value the same; but no valuation was at any time made, nor was any other insurance effected on the freight. The policy was for 5001. and the Plaintiff's testator subscribed it for 100. The Defendants had previously insured the ship for 3000l. at which sum she was valued in the policies at and from Hull to Petersburgh, and at and from thence back to any port between the Frith of Forth and the Downs. The ship sailed ship having affrom Hull, and arrived at St. Petersburgh in safety, and having terwards brought home engaged a full cargo upon freight, for the voyage from thence the cargo which to Hull, had taken in or received on board nearly the whole was on board at thereof, when she was detained by the Russian embargo, and detention, and the cargo taken out. On the 23d February 1801, the Defend- earned freight accordingly ants abandoned to the underwriters on the ship, all their right which 4. reand interest in the policies on the ship; and on the 11th March ceived; held, 1801, they abandoned to the Plaintiff's testator, and the other underwriters on the freight, all their right and title to such freight. These abandonments were accepted by the underwriters, and adjustments were signed on the policies. That upon the ship was as follows :-Adjusted a total loss of 100l. per cent. "on this policy, and hereby order Richard Terry and Son (the 'Defendants) to debit our accounts for our respective subscriptions "at that rate, which we agree to pay in good bills on London, not exceeding two months' date from the 1st day of April 1801; "the within-mentioned ship having been arrested and detained in Russia, by order of the Russian government; the assured hereby Vide Robertson v. Carruthers, 2 Stark. Ni. Pri. 571. M'Carthy v. Abel, 5 East 388-394. Barclay v. Stirling, 5 M & S. 6. Case v. Davidson, Id. 79. Green v. R. E. Company, 6 Taunt. 68. Idle v. Royal Exchange Company, 8 Taunt. 755-763. Davidson v. Case, 8 Price, 542-553. that in an ac tion by the un derwriters on freight against 4. they were cover the freight so received by entitled to re him. "undertaking |