1874 ANDERSON บ. MORICE. assured had an interest in it or an expectation of profit arising out of it. In Ebsworth v. Alliance Marine Insurance Co. (1), where the circumstances were similar, there was no difference of opinion as to there being an insurable interest, the only question was whether it was for the whole of the value or part only. The question is in reality one of fact; as soon as the cargo of the Sunbeam comes into existence there is a subject-matter of the contract of sale, and also of the insurance in which the plaintiff has an insurable interest. It is contended that when all the cargo, except an insignificant fraction, had been shipped and the remainder was alongside, the cargo of the Sunbeam did exist in specie and the plaintiff had an insurable interest in it. The vendors could not, without breach of contract, have withdrawn the rice so appropriated to the contract. The fact that the purchaser might still have. a right of rejecting the rice does not prevent there being an insurable interest. [They cited on this point: Houghton v. Gilbart (2); Sargent v. Reed (3); British Columbia Saw Mill Co. v. Nettleship (4); Kreuger v. Blanck (5); Sparkes v. Marshall (6); Castle v. Playford. (7)] With regard to the questions of seaworthiness and whether there was a loss by the perils of the sea, it cannot be laid down as the law that, unless the assured can explain the cause of the loss they cannot recover. The evidence of the plaintiff in this case shewed that the ship was seaworthy: the only case to the contrary on which the defendant can rely beyond the merest conjecture is the fact that the plaintiff cannot explain the cause of the loss. The loss is primâ facie by a peril insured against, i.e. by the sea rushing into the ship and sinking her; the fact that the cause of this cannot be explained does not amount to evidence of unseaworthiness or shew that the ship perished by her own inherent defect, not by the perils insured against. [They cited on this point Dixon v. Saddler (8); Cullen v. Butler (9); Davidson v. Burnand. (10)] Sir J. B. Karslake, Q.C., Butt, Q.C., and Cohen, Q.C., supported (1) Law Rep. 8 C. P. 596. (2) 7 C. & P. 701. (3) 2 Str. 1228. (4) Law Rep. 3 C. P. 499. (5) Law Rep. 5 Ex. 179. (6) 2 Bing. N. C. 761. (7) Law Rep. 7 Ex. 98. (8) 5 M. & W. 405; 8 M. & W. 895. (9) 5 M. & S. 461. (10) Law Rep. 4 C. P. 117. v. MORICE. the rule. The mere fact of the vessel's sinking is no proof of a 1874 loss by perils of the sea, even admitting that she were seaworthy. ANDERSON But it is contended that the fact of a ship sinking in smooth water, without any assignable external cause, is the strongest evidence of unseaworthiness. If a house fell down without assignable cause could that be a proof that it fell from some cause other than its own defect? It is contended that the burthen of proof that the vessel was lost by a peril of the sea is on the plaintiff, and it is not a proper direction to give the jury that if the vessel were seaworthy, then the mere fact of her going down is evidence of a loss by the perils of the sea. Assuming that there was evidence of a loss by perils of the sea, then it is contended that there was irresistible evidence of unseaworthiness in the mere fact that the vessel sank in port in fine weather without its being possible to shew any reason, except the merest conjecture, for her so doing. No other cause being discovered for the vessel's sinking, primâ facie the presumption is that it was caused by some defect in her condition at the time. [They cited on this point Thompson v. Hopper (1); Fawcus v. Sarsfield (2); Busk v. Royal Exchange Assurance Co. (3); Giblin v. McMullen (4); Watson v. Clark (5); Parker v. Potts (6); Douglas v. Scougall (7); Prescott v. Union Marine Insurance Co. (8); Paterson v. Harris. (9)] It is contended that the plaintiff had no insurable interest in the present case. The fact of the plaintiff's choosing to take to the rice, although not bound to do so by the contract, cannot affect the question. The subject-matter of the contract in which the plaintiff's interest was to arise was the cargo of the Sunbeam. That cargo never came into existence. The plaintiff's interest was altogether executory. The sellers provided the ship; they might have changed the destination of the rice in the lighters, or even have withdrawn the rice already on board. They would be guilty of a breach of contract if they did not supply a cargo of rice for the Sunbeam, but the plaintiff would have no claim as to any (1) E. B. & E. 1038; 26 L. J. (Q.B.) 18. (2) 6 E. & B. 192; 25 L. J. (Q.B.) 249. (3) 2 B. & Ald. 73. (4) Law Rep. 2 P. C. 317, 335. (5) 1 Dow. H. L. 344. (7) 4 Dow. H. L. 269. (8) 1 Whart. Penn. 399. (9) 1 B. & S. 336; 30 L. J. (Q.B.) 354. specific rice. It is contended that the property must pass in order that there may be an insurable interest. The contract of marine insurance is a contract of indemnity. The plaintiff never became bound to take the rice or to pay the price: it was not a complete cargo; bills of lading had not been signed at the time of the loss. The price never could be ascertained as provided for by the contract, inasmuch as the rice could not be weighed: it is necessary that the purchaser should assent to the appropriation of the rice before it can be finally appropriated to the contract. The intention of the contract is that the property should not pass till the drafts are signed and delivered against the shipping documents. If the legal property is not necessary to constitute an insurable interest there must be such an interest in law or equity as to entitle the insurer to have the specific thing appropriated to his use. There is not such an interest here. There might possibly be a right to insure profits to arise out of an executory contract; that is an altogether different thing from an insurable interest in the subject-matter of the contract itself. Can it be said in any sense that the loss of the rice was the plaintiff's loss of the rice ? It is admitted that a man may insure as agent, and so the plaintiff might have insured as the agent of the sellers, but there is no suggestion that that was the case here. [They cited on this point Lucena v. Craufurd (1); Warder v. Horton (2); Crowley v. Cohen (3); Browne v. Hare (4); Bank of Ireland v. Perry (5) ; McSwinny v. Royal Exchange Insurance Co. (6); Fothergill v. Rowlands (7); Stockdale v. Dunlop (8); Wait v. Baker (9); Tamvaco v. Lucas (10); Aldridge v. Johnson (11); Chope v. Reynolds. (12)] The damages ought to be reduced, the policy not being a valued policy, inasmuch as they include 15 per cent. in addition to the invoice price of the rice. Nov. 2. The judgment of the Court (Lord Coleridge, C.J., and Brett and Denman, JJ.) was delivered by BRETT, J. In this case the action was brought to recover upon a policy of insurance signed by the defendant for indemnity in respect of a cargo of rice alleged to have been lost by perils of the sea. The main defences were, that there had been no loss by perils of the sea, that the ship was unseaworthy when the policy attached, and that the plaintiff had no insurable interest in the cargo at the time of the loss. The plaintiff, a merchant in London, entered on the 2nd of February, 1871, into a contract with Barradaile, Schiller, & Co., of Calcutta and London, for the purchase of a cargo of Rangoon rice per Sunbeam, at 9s. 13d. per cwt. The bought-note was in the following terms:-"2nd February, 1871. Bought for account of Anderson & Co. of Barradaile, Schiller, & Co., the cargo of new crop Rangoon rice per Sunbeam, 707 tons register, No. 1254 in veritas, at 9s. 14d. per cwt., cost and freight, expected to be March shipment: but contract to be void should vessel not arrive at Rangoon before April, 1871. Payment by sellers' draft on purchasers at six months sight, with documents attached." The Sunbeam did not belong either to the sellers or the purchaser. She was chartered by the sellers' agents "to proceed to Rangoon to ship and carry a cargo of rice to any port in the United Kingdom or Continent." On the 3rd of February, 1871, the plaintiff effected insurance with the defendant, "at and from Rangoon to any port or place of discharge in the United Kingdom or Continent, by the Sunbeam, warranted to sail from Rangoon on or before the 1st of April, on rice, as interest may appear: amount of invoice to be deemed the value: average payable on every 500 bags: the said merchandizes, &c., are and shall be valued at 55007., part of 60007.” The Sunbeam arrived in the Rangoon river on the 3rd of March, 1871, and was anchored in the usual anchorage, at the junction of the rivers Rangoon and Pegu, about four miles below the town of Rangoon. She was anchored by two anchors in a somewhat peculiar way, much discussed before the jury and afterwards before the Court. When the ship was first brought up, it was by 1874 ANDERSON V. MORICE. v. MORICE. 1874 one anchor with sixty fathoms of chain. The ship was, therefore, ANDERSON then, and when she swung with the next tide, sixty fathoms from her anchor. After she had thus swung, her second anchor was let go. It would at that moment have no effect: it would be under the bows of the ship, which would be held by her other anchor with the sixty fathoms chain. But, when the ship swung at the next tide, she was checked by this second anchor to which thirty fathoms of chain was then given, which stopped the ship at thirty fathoms from that anchor as and when she had gone thirty fathoms towards her first anchor. The chain of that first anchor was then taken in to thirty fathoms, so that the anchors were sixty fathoms apart, one being up and the other down the river, and the ship was held by the bows midway between them, that is to say, at thirty fathoms from each,-held by the one or the other as the tide was on the ebb or flood. The draught of the ship when most loaded was 19 ft. 6 in. The depth of water where she lay was 22 feet at low water. The bottom of the river generally was soft mud of some feet in depth. The tide is strong in the Rangoon river. The ship discharged ballast and began to load rice early in March. The captain was anxious to complete loading by the 1st of April, on account of the orders to do so, and to secure a gratuity due to him if he should do so. The rice was brought to the ship in lighters from stores near the town of Rangoon, and was carried on board the Sunbeam and there stowed by coolies. On the 30th of March, the ship was nearly loaded. There were 8878 bags then on board. Four hundred more bags would have completed the cargo, and they were in lighters alongside. The loading had been much accelerated during the latter days of loading. On the morning of the 30th of March, the ship suddenly made a great deal of water. This, in spite of every exertion, increased with great rapidity, so that in the course of the night the ship sank at her anchors and was totally lost, as was also all the cargo then on board. After the ship had sunk, and after ship and cargo were lost, and in order to enable the plaintiff to claim on the policy, the captain signed bills of lading for the cargo which had been shipped, and the sellers drew bills of exchange for the price of such cargo, which were accepted and met by the plaintiff. |