The Court or Court of appeal was to be at liberty to draw inferences of fact in the same way as a jury would be entitled to do. The questions for the opinion of the Court were: First, Whether the plaintiff was entitled to recover on the policy against the defendant as for an absolute total loss as distinguished from a constructive total loss. And if the Court should answer this question in the negative, then Second. Whether it was material in determining the question of constructive total loss to take into account the liability, if any such existed, of the cargo and freight to make a general average contribution towards the expenses of raising the ship, or towards the general average loss at sea. Third. Whether the notice of abandonment was given too late. The case Edward James (Watkin Williams with him), for the plaintiff. Cohen (Brett with him), for the defendant. [1866.] KEMP V. HALLIDAY. Watkin Williams replied. Cur. adv. vult. The Judges disagreeing in opinion, the following judgments were delivered in Trinity Term, 1865, June 13th. SHEE J. Having had the advantage of reading the judgment of my brother Blackburn, I refer generally [1866.] KEMP V. HALLIDAY. for the facts on which our opinion is asked to his statement of them, and to the statement in the case. In the law laid down by him as the result of a great number of differently worded and variously illustrated decisions-Irving v. Manning (a), Parry v. Aberdein (b), Benson v. Chapman (c), Moss v. Smith (d), Gardner v. Salvador (e), Rosetto v. Gurney (f); on the question of abandonment and constructive total loss, I so entirely concur, that I think it better to adopt the language which he has used than to attempt any further elucidation of the principle which it establishes. If my judgment could prevail, the plaintiff would retain his verdict. I differ with my learned brother rather upon the inferences to be drawn from the facts submitted to us, and upon the application to them of the law, than upon the law itself. On the first question, viz., whether the plaintiff is entitled to recover as for an absolute total loss as distinguished from a constructive total loss, my answer is, No. It was not impossible to raise, or when raised, to repair the ship. There was a chance of raising her in a condition which might enable her after repairs had been done to her, to be used as a ship. Subsisting as she did in specie under the control of the assured, and not being in danger of immediate destruction, it would have been inexcusable to have sold her and to have allowed her to be removed in fragments as a wreck, or to have sold her as a wreck when raised, without giving to the underwriters, by notice of abandonment, (a) 1 H. L. C. 287. 306. (b) 9 B. & C. 411. 417. (f) 11 C. B. 176. the opportunity of electing whether they would incur the expense of raising and repairing her. We can, as it seems to me, consistently with the decisions-Anderson v. The Royal Exchange Assurance Company (a), Stewart v. The Greenock Marine Insurance Company (b), Fleming v. Smith (c), Knight v. Faith (d)-within the range of which the facts before us lie, give but one answer to this question, viz.-that the ship as she lay submerged at Falmouth, and when moored in dock after she had been raised, was not an absolute total loss. To the second question proposed to us, viz., whether it was material in determining the question of constructive total loss to take into account the liability, if any such existed, of the cargo and freight to make a general average towards the expenses of raising the ship, or towards the general average loss at sea, my answer is also in the negative. It is admitted that, regard being had to the cost of raising the ship, the cost of repairing her when raised, and her probable value when repaired, she was constructively a total loss on the 4th of December, when the plaintiff informed the Messrs. Broad that he abandoned her, and also when moored in dock after she had been raised; unless the liability of the freight and cargo to contribute to the general average loss at sea, and of the freight and cargo to contribute in a general average to the costs of raising her, or either of them, were, in determining the question whether she was constructively a total loss, proper items of deduction from the outlay necessary to raise and repair her. First, as to the general average loss at sea. A [1866.] KEMP V. HALLIDAY. [1866.] KEMP V. HALLIDAY. voluntary sacrifice of part of the ship and of her apparel having been made for the aversion of the common danger, to which ship, freight, and cargo were exposed, the assured on ship had a claim against his insurers for the share of that loss chargeable to ship, and also for the share, should it not have been paid to him, chargeable to the cargo, they on payment of this latter share being subrogated to the assured on ship as respects his claim for it upon his co-contributories to the general average-Pothier, Traité du contrat d'assurance, Chap. 1, No. 52; Marshall on Insurance, 5th ed., p. 435. Such portions of the money value of the assured's share of the general average contribution as had not been expended on the repairs before the final disaster, would, as a claim upon his insurers, merge and be absorbed in the subsequent loss, if total, occasioned by that disaster -Marshall on Insurance, 5th ed., 435, Le Cheminant v. Pearson (a), Stewart v. Steele (b), Livie v. Janson (c); such portion of it as had been expended on repairs which had become valueless by reason of fresh damage done by the final disaster to the parts repaired, would have to be expended again, if a resolution to repair had been taken; such portion as had been actually expended on repairs which enured to the benefit of the ship after the final disaster, must be taken, on these findings, to have been considered in the estimate of the repairs which would be required for her restoration; so that no portion of the indemnity recoverable by the shipowner from his insurers in respect of his ship's share of the (a) 4 Taunt. 367. (b) 5 Scott N. R. 927. (<) 12 East 648. general average loss at sea could come in aid of his liability on contracts for raising or repairing the ship. The same observations apply to such portion of the share of the general average contribution chargeable to the cargo, as before the final disaster had been expended on repairs which had become valueless by reason of fresh damage done to the parts repaired, or which still enuring to the ship's benefit after the final disaster, must be taken to have been considered in the estimate of the required repairs on which the resolution to abandon was based. Whether the cost of raising the ship, if she had been raised by the plaintiff, would have been the subject of a general average or not, is a question which it is impossible, as I read the statement before us, to answer affirmatively, uninformed as we are of the state of things as respects ship, freight and cargo, in which, and the intention with which, the cost would have been incurred. Extraordinary expenses, submitted to by the master of a ship, under the urgent pressure of a well founded fear or moral certainty, should they not be submitted to, of total loss of ship, freight, and cargo-(Emérigon, Traité des Assurances, cap. 12, s. 39, § 6, Benecke on Marine Insurance, pp. 191, 192, Baily on General Average, p. 15)--all of them being in equal peril of perishing, may, so far as such expenses have served to avert a danger threatening the whole concern, and have not been incurred to repair or diminish an already existing loss,—as well found a claim for general average contribution, as the jettison of goods or the cutting away of masts and cables (Benecke, p. 214-15). But the right to contribution by way of general average has no place, where there has 3 c B. & S. VOL. VI. [1866.] KEMP V. HALLIDAY, |