Q. B.] KIDSTONE V. THE EMPIRE MARINE INSURANCE COMPANY. the owner, or of a mortgagee, or of the dock authorities, or, of a broker, or of any other person, did not appear. In the case of Mitchison v. Oliver, 5 E. & B. 445-6, Parke, B., in delivering the judgment of the Court of Ex. Ch., says, in remarking upon a passage of Lord Campbell's summing up, in which he had put it to the jury, whether, upon the evidence on both sides they were of opinion that the deft. had authorised the goods and work to be supplied and done on his credit, &c., proceeds as follows: "No doubt, if the jury disbelieved the parts of the case that made for the deft., and drew the prima facie inference from the ownership and other facts, there was evidence on which they might find that Thompson was, in fact, master for the deft." It appears to be clear, I think, that Parke, B. did not consider that the mere fact of ownership, without "the other facts," would have afforded even prima facie evidence that Thompson was the deft.'s master. The action was for ordinary repairs done to the ship, and for goods supplied to it upon the orders of the registered master; and there were other circum stances tending to raise an inference as to the liability of the deft.; but it never appears to have been contended by the counsel, or suggested by any of the judges, that the registry alone would have been sufficient proof that the captain was the captain of the owner, so as to bind him. However this may be in the case of repairs done to a ship or stores supplied to it for the apparent benefit of the owner, the same reason does not apply to the present case. I think it would be unduly shifting the burden of proof to call for an answer to the mere fact of ownership; and I cannot see why any presumption should be made which would dispense with the necessity of further proof. Possession may be presumptive evidence of title, but the converse does not necessarily hold, viz., that title is presumptive evidence of possession. It is obvious that in the case of things which are constantly the subject of demise, charter, mortgage, or the like, the presumption that the actual possession is in the owner cannot but be weak, and is not to be classed with those strong presumptions which shift the burden of proof from a plt. to a deft. There exists an exception to the general rule that a party who alleges a matter must prove it in cases in which the subject-matter of the allegation lies peculiarly within the knowledge of one of the parties. In this case there is no peculiar knowledge on the part of the deft. within the meaning of that maxim. In one sense, in almost every case, the deft. has peculiar knowledge affecting his relation to the act complained of, but that is not the knowledge referred to. Here the ship-keeper could have proved by whom he was appointed, and so have laid a good foundation for the plt.'s case, if appointed by him. Why should the burden of proof shift in such a state of things in order to compel a deft. to disprove that which it was incumbent upon the plt. to prove, and I am not aware of any case in which such evidence has been held sufficient, and I think that all experience at Nisi Prius is against it. For these reasons, I am of opinion that this rule should be made absolute, but as a majority of the court is of a different opinion, the rule will of course be discharged. The deft. elected to take a rule for a new trial. Attorneys for the plt., Wood and Willicombe. Attorneys for the deft., Marshall, Westall, and Roberts. [C. P. COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqra, Barristers-at-Law. Jan. 29 and 30 and May 8, 1866. KIDSTONE v. THE EMPIRE MARINE INSURANCE COMPANY. Marine insurance company-Construction of policy. A vessel was chartered from the Chinca Islands to the United Kingdom, loaded a cargo of guano at the former place, and proceeded on her voyage, but on going round Cape Horn was so damaged that she had to put in at Rio, where she was abandoned. The carga however, was transhipped into another vessel and sent home; the chartered freight exceeded the expenses of transhipment, and the freight from Rio was received by the assured. The present action was brought on a policy of a ance to recover the expenses of transhipment and for warding, and the question was, whether the warranty in the policy was applicable to the circumstances, the contention being, that the charges came under the head of particular charges, and not of particular average. The following were the terms of the warranty: “Fre from particular average, from jettison, and unless the ship be stranded, sunk, or burnt:" Held, first, that the expenses incurred were within the clause; secondly, that the occasion upon which they were incurred was such as to be within it; and third that the application of the suing and labouring clause was not excluded by the warranty against particular average. This was a rule calling on the plt. to show cause why the verdict found for him at the trial should not be set aside and entered for the deft. The facts of the case are sufficiently set out in the judgment. Edward James, Q. C. and Honyman showed cause. Mellish, Q. C. and Cohen appeared in support of the rule. The following cases were cited in the course of the argument: Mount v. Harrison, 4 Bing. 388; Farnmouth v. Hyde, 34 L. J. 207, C. P.; 12 L. T. Great Indian Peninsular Railway v. Sandham, 1 Best Philpott v. Swan, 16 C. B., N. S., 772; 5 L. T. Rep. Vlierboom v. Chapman, 13 M. & W. 230; Emerigon, translated by Meredith, ch. 17; original Maclachlan's Arnould on Insurance, p. 789; WILLES J. now delivered the judgment of the court. This was an action on a policy of insurance for 2000l. from South America to the United Kingdom. The vessel procured a charter from the Chinca Islands to the United Kingdom, loaded cargo of guano there, and on going round Cape Horn suffered damage so serious that she had to put into Rio, where she was abandoned, and it must be taken for the purpose of this case, was totally lost. The cargo, however, was transhipped into another vessel and sent home, and the chartered freight, or an amount equivalent to the chartered freight, accord ing to the construction to be put on the matter, C. P.] KIDSTONE V. THE EMPIRE MARINE INSURANCE COMPANY. [C. P exceeded the expenses of transhipment, and the | able. There is, in each case, a loss or misfortune freight from Rio to Liverpool was received by the threatening the safety of the subject-matter of the assured. The action was brought by the assured to insurance, and by the operation of which, unless recover the expenses of transhipment and forwarding. averted by labour, that subject-matter will be At the trial evidence was given to show that the imperilled, and the underwriters may become liable. warranty in the policy on which the question As to the second head, whether the occasion upon turned was not considered applicable to the circum- which the expenses were incurred was such as to be stances. The warranty was free from particular within the suing and labouring clause, this depends average, from jettison, and unless the ship be stranded, upon the true answer to the question so thoroughly sunk or burnt, neither of which happened. The discussed in the course of the argument, namely, evidence given was for the purpose of showing that whether the clause ought to be limited in constructhe charges of transhipping and forwarding had been tion to a case where the assured abandons, or may considered what was called technically particular perchance abandon, so that the expense incurred is charges, not as particular average so as to be within not only in respect of a subject-matter in which the the warranty. The verdict passed for the plt. underwriters are interested, but upon property which, affirming the existence of the usage at the time when by the abandonment, actually becomes or may the policy was made, subject to leave reserved to the become theirs; or whether it extends to every case defts. to move to enter a verdict, which they accord-in which the subject of insurance is exposed to ingly did, and that rule was discussed last term loss or damage, for the consequences of which before the Lord Chief Justice, my brothers Keating, the underwriters would be answerable, in wardSmith, and myself, when we took time to consider. ing off which labour is expended. In the former At the sittings after term we discharged the rule, construction the clause is inapplicable to the not stating our reasons, but promising to state them present case; in the latter it is applicable, and the during this term, and that promise I am now about assured is entitled to contribution. The question to fufil. Many points were made upon the argument manifestly depends upon the construction of the of this rule, upon one of which it is only necessary language of the clause; and, quite apart from the to pronounce an opinion. That turned upon the proved usages, we think the latter is the true conconstruction of the suing and labouring clause instruction. The words of the ordinary suing and the policy, and it may be considered under the labouring clause (to which in this policy is superfollowing heads: First, whether the expenses added an express provision as to abandonment, upon incurred were of a character to be within the clause; which we need only say, in passing, that it does not secondly, whether the occasion upon which they were alter the question in favour of the underwriters) are incurred was such as to be within it; thirdly, used in the same form as must have been in common whether, if such, the application of the clause use before 1783, when Emerigon published his great is excluded by the warranty against particular work on insurance, in which, amongst the various average. As to the first question it was hardly forms of the clause used at different periods, that of disputed that the expenses incurred were of a the London Policy then used is given (2 Emerigon, character to be within the clause; without in- by Boulay Paty, 239); the words are quite general, curring them the subject-matter of the insurance and ought to be so construed, unless some good would never have had any complete existence. reason is given for restraining them, that in case of They were incurred in order to earn it, and they any loss or misfortune it shall be lawful to sue represented so much labour beyond and besides the labour, and travel in and about the defence, safeordinary labour of the voyage rendered necessary guard, and recovery of the subject-matter, without for the salvation of the subject-matter of insurance prejudice to the insurance-not abandonment, as in by reason of a damage and loss within the scope of the French Ordonnance hereinafter cited-the the policy, the immediate effect of which was that charges whereof the said company will bear in prothe subject-matter insured would also be lost, or portion to the sum hereby insured (not the amount rather would never come into existence, unless such saved, as in the French Ordonnance). Up to this labour was bestowed. As the goods lay at Rio no point there is not a word about abandonment; and part of the chartered freight had accrued due and this is the whole of the usual clause. The meaning no freight even pro rata itineris could have been is obvious, that if an occasion should arise in which, claimed by the shipowner. His only right in by reason of a peril insured against, unusual labour respect of chartered freight was to detain the goods or expense is rendered necessary to prevent a loss for a reasonable time in order to send them on in for which the underwriters would be answerable, another vessel to their destination, and then claim and such labour and expense is incurred accordan amount equal to that of the chartered freight. ingly, the underwriters will contribute, not as part In order to do so, labour must be used and expense in- of the sum insured in case of loss or damage, curred. It can make no difference whatever whether because it may be that loss or damage for which they the shipowner happens to have at the port of dis- would be liable is averted by the labour bestowed, but tress a vessel of his own which he can employ in as a contribution on their part as persons who have this service-in that case the labour of forwarding avoided detriment by the result in proportion to would be strictly that of himself or his servants-or what they would have had to pay if such detriment whether he forwarded in the vessel of another upon had come to a head for want of timely care. Take payment for his labour and that of his servants; for instance the case of a policy on goods warranted nor can it make any difference in the application of free of average under 5 per cent. wetted in a storm the clause whether, as here, the goods are in a which drives the ship into a port of distress, where, port of large resort, where, by reason of the rate of by drying at an expense less than 5 per cent., the freight, a forwarding vessel is easily procured, or goods might be saved or damaged under 5 per cent., whether the vessel becomes a wreck in an out-of-the- whilst if not dried they would decay and become way place and by unusual enterprise and skill the damaged over 5 per cent. they existing in specie, so master is enabled to communiaate with a vessel that freight would be payable, in this case there is either of his owner or of some other person, by no abandonment and may be no prospect of one, which he forwards the cargo to its destination. The and yet it is manifestly the duty of the master to amount of labour is different in degree in the two use all reasonable means to preserve the goods, and cases, but in each it is a consequence of a peril obviously for the interest of the underwriters to insured against, it is incurred in preventing the encourage him in the performance of that duty by destruction of the subject-matter, for which, in the contributing to the expense incurred. Not only the event of its loss, the underwriters must be answer- generality of the words, but also the subject-matter C. P.] KIDSTONE v. THE EMPIRE MARINE INSURANCE COMPANY. [C. P. to which they relate here, points to the application | altogether or to an extent less than the percentage, of the clause to all cases in which the underwriter is saved from liability to loss, whether partial or total, and whether an abandonment does or may possibly take place or not. There remains to be considered, thirdly, whether the application of the suing or labouring clause is excluded in this particular case by the warranty against particular average, "warranted free from particular average, also from jettison, unless the ship be stranded, sunk, or burnt," and this depends upon whether the expression particular average in the context, and construed according to the golden rule by what goes before and follows in the policy, includes expenses which fall within the suing and labouring clause, so that in fact that suing and labouring clause is expunged by the warranty. This is a question the answer to which involves important consequences, because, if the warranty against particular average, or, to use a more accurate expression with the same meaning, the warranty against total loss, only excludes the operation of the suing and labouring clause, even where an impending total loss is averted by extraordinary exertion and expense, it must be because the word average has some fixed and definite meaning so rigid and unelastic that it cannot be modified or limited so as to apply to loss of or damage to the things insured (the sense in which it has been hitherto understood by average staters), but that it must needs also include contribution to any labour incurred in the defence and safeguard of the thing insured, so that even an express clause left standing in the policy without reference to such labour (the suing and labouring clause) must be rejected as inconsistent with the warranty. If this be so, it must equally be true of all memorandum goods which are warranted free from average under a certain percentage, and the operation of this would be so general, if not universal, that the suing and labouring clause would be confined to the cases excepted in the memorandum alone. Two results would follow, both novel in practice, and one at least very remarkable. The first would be unfavourable to the underwriters, because the memorandum was framed to protect the underwriters from frivolous demands in respect of small losses, which are most likely to have arisen from natural deterioration, or wear and tear. The exception of stranding tends to show that this was the scope of the memorandum, for it is the exception of such a loss as makes it probable that the deterioration of the goods, though under the percentage, was nevertheless not to be attributed to the perishable nature of the goods themselves. Accordingly the rule has been to pay for damage to memorandum articles only when it exceeds the specified percentage, and not to allow this percentage to be eked out by expenses falling within the suing and labouring clause. Thus, in the case of goods already put, of goods wetted by a storm, the amount of expense reasonably incurred in preserving the goods is, according to the present practice, contributed to under the suing and labouring clauses, however small in the result the loss or damage to the goods, and the loss of or damage to the goods is paid if it amounts to the stipulated percentage, but not otherwise; and the amount of expenses is not added in order to make up that percentage; thus the agreed percentage at 5 per cent., if the expense amount to 2 per cent. and the loss or damage to 3 per cent. only, the expenses are paid and not the average; but if we hold that the warranty excludes the application of the suing and labouring clause the whole must be paid, and the underwriters will be exposed to the very inconvenience which the memorandum has been supposed to obviate. Upon the other hand, if the expenses should be less than the percentage and the loss is thereby prevented, either as if in the case put the expenses were 3 per cent. and the damages only 1 per cent., according to the present practice the underwriters would pay the expenses; but if we decide for the present defts., the underwriters, although saved from loss, would be altogether exempt from contribution. In our view, however, we are not compelled to adopt so inconvenient and impracti cable a conclusion. The word average, so far from being a term of art (except in so far as, according to the evidence, usage may have limited its meaning to loss or damage to the goods themselves), a word with a rigid unchanging signification necessarily including expenses in the defence or safeguard of the subject-matters insured, is a word used in a great variety of phrases as applicable to different subject-matter, and not with any fixed or settled application. It would be tedious to go through the various uses to which it is applied, and we need do no more than refer to the instances cited in argument, and more especially to the very learned note of Mr.Maclachlan, in Arnould on Insurance, 3rd edit, p. 739, which exhausts the subject as far as novelty is concerned. Amongst the various uses to which the word has been applied, no doubt that of smail expense is one, as in the usual clause in a charterparty. So in the case of insurance itself, expenses must often be taken into account in determining whether there has been a loss or not, but only be cause a thing is lost in insurance law which cannot be got back except at an expense equal to its value when recovered. The question here, however, is not as to the extension of which the term average is capable, but of the sense in which it ought to be understood in the particular context with which it is to be reconciled, and, if possible, read so as that effect may be given to every provision in the instru ment. Nor is it to be forgotten that the suing and labouring clause which, for the reasons already stated, specially provides for those cases, has been allowed to remain a part of the policy, and that a special provision as to a particular subject-matter is to be preferred to general language which might have governed in the absence of such a special provision: generalia specialibus derogant, specialia generalibus derogant. In our opinion, quite apart from usage, the true construction of the policy is reconciling and giving effect to all its provisions, as if the warranty against particular average does no more than limit the insurance to total loss of the freight by the perils insured against without reference to extraordinary labour or expense which may be incurred by the assured in preserving the freight from loss, or rather from never becoming due by reason of the operation of the perils insured against, and that the latter expenses are specially provided for by the suing and labouring clauses, and may be recovered thereunder. Much reliance was placed for the defts. upon two recent decisions which were said to have determined that there could be no liability under the suing and labouring clause when there was none under the policy: The Great Indian Penis sular Railway Company v. Saunderson, 1 B. & Sm., and in error, 2 B. & Sm.; and Booth v. Gair, 33 L. J. 99, C. P., the first of which cases was decided before and the other after the date of the present policy. Before these decisions the liability of the underwriters appears to have been universally admitted and acted upon even in the cases where the expenses were incurred to forward goods existing in specie at the port of distress, and warranted free from particular average, so that no liability could accrue to the underwriters by their not being forwarded. Probably the underwriters up to the time of the first of those decisions thought it so important to encourage ho nest efforts to preserve and forward the cargo, or otherwise to C. P.] KIDSTONE v. THE EMPIRE MARINE INSURANCE COMPANY. preserve the subject-matter of insurance, that they preferred paying in all unsuspicious cases without nice inquiries as to whether the expenses had in the particular instance averted liability. In so doing they not only acted with liberality, but no doubt also best studied their own interests, and whilst they calculated the premium so as to include a remuneration for the extra liability which they were satisfied to incur, they probably found that the encouragement to fair dealing thereby afforded was their best security against the more serious losses that might arise from neglect of precautions of which the expense is thrown upon the assured. This practice, however, could not prevail to alter or enlarge the application of the suing and labouring clause, because, although usage may improve a meaning upon a word, such as average, it cannot alter the rules of construction, and in the cases referred to the decision and the sole decision was, that freight and other expenses of forwarding from a port of distress to the port of destination goods warranted free of particular average under circumstances in which the underwriters could not have been liable if the expense were not incurred, was not within the true intent and meaning of the suing and labouring clause, which in the context of a policy of insurance could only extend to suing and labouring by means of which the underwriters might obtain a benefit. In the Great Indian Peninsular Railway Company v. Saunders the goods were iron rails for Bombay, shipped to be paid for lost or not lost. They were insured with a warranty free of particular average unless the ship should be stranded, sunk, or burnt. The vessel on her way put into Plymouth, when she was a total loss, but she was not stranded, sunk, or burnt. The rails were saved and sent on in other vessels, and for the freight paid upon such forwarding the underwriters were held not to be liable; and Blackburn, J., in delivering the judgment of the court, carefully abstained from expressing an opinion upon the question, because it did not arise in that case, and he founded his judgment on the circumstance that the underwriters had not obtained any advantages. That judgment was affirmed in the Court of Ex. Ch. in the 2nd B. & S. Erle, C.J. also guarded himself against deciding that in a case such as the present the underwriters were not liable. That case was followed by Booth v. Gair, in which a similar question rose with respect to some bacon which was taken into a port of distress at Bermuda, and was there abandoned, so that there was no total loss. The bacon was landed in specie, and was not totally lost either constructively or otherwise. No expenses appear to have been incurred in saving the goods from a total loss, which was negatived; but certain expenses were incurred in the way of extra freight, transhipment, warehousing, and conveying, and cooperage, all of which were treated as expenses of forwarding the goods. It was further proved that it was the practice of underwriters on goods to pay such expenses under like circumstances under the name of particular charges. The judgment was for the underwriters upon the grounds stated by Erle, C. J., namely, that what the master did was in discharge of his duty in ordinary course, and there was no peril creating a risk of a total loss from which the underwriters were saved by the expenses in question. There were no other perils than such as are always attendant on the transit of goods by the voyage in question. No notice appears to have been taken of the practice of underwriters, for the reasons already mentioned, that although usage would give to the words "average" or "particular average," or "average" unless general, a conventional meaning, so as to make it include partial loss or damage of the subject-matter only, and not what are known as particular charges which [C. P. fall within the suing and labouring clause; yet He C. P.] THE SHOOTING STAR; JOHNSON v. CHAPMAN. donnance de la Marine, clause 45, which is followed closely, though not exactly, by the present commercial Code of France, art. 382, each of which makes it the duty of the assured to labour and sue at the charge of the underwriter only in case of shipwreck or stranding. Read by the light of the Ordonnance, the views of Emerigon, so far from being opposed to, are in favour of the construction which we adopt. Hitherto we have only adverted in passing to the evidence, and the finding of the jury upon the understood meaning in the business of marine insurance of the phrase "particular average." If necessary we should have been prepared to hold that the evidence established such an understood meaning according to which particular average does not include particular charges, and to act upon such usage is equally sound with the express part of the contract. It is needless, however, to enlarge upon this part of the case, because, upon the facts proved and the true construction of the policy itself, we have, for the reasons already given, come to the conclusion that there was a danger of the total loss of the freight by reason of the loss of the ship by the perils insured against; that the measures taken by the plt. to avert the loss, and the expenses incurred thereon, were taken and incurred for the benefit of the underwriters in averting a loss for which they would have been liable, and so that they were within the suing and labouring clause; and that the underwriters are liable to contribute thereto. It is satisfactory, however, to think that, in arriving at this conclusion upon the meaning of the contract into which the defts. have entered, we are deciding also in accordance with the approved usages of commerce. The verdict for the plt. was therefore right, and these were the reasons why the rule to enter the verdict for the deft. was discharged. Rule discharged. May 30 and July 10, 1866. THE SHOOTING STAR; JOHNSON v. CHAPMAN. Average contribution—General and particular average. Heid, that such jettison was made to avert a danger This suit came before the court in the form of a special case, as follows: The plts. are the owners of a ship named the Shooting Star; and the deft. is a merchant carrying on business in London under the name of E. H. Chapman and Company. On the 26th May 1863 a charter-party was executed by the plts. and the deft., to the effect that the Shooting Star was to proceed to Quebec," and there load from the factors of the charterer (the deft.) a full and complete cargo of deals, including a deck load, one-half of the cargo to be floated deals at the bottom, and the remainder dry deals, and deal ends and staves as required by the master for broken stowage, not [C. P. exceeding what the ship can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and, being so laden, shall proceed to London, or so near thereunto as she can safely get, and deliver the same on being paid freight." In pursuance of this charter-party the Shooting Star proceeded to Quebec, and loaded there from the deft.'s factors a full and complete cargo of deals and stores, including a deck load, and, being so loaded, duly proceeded, in pursuance of the said charter. party, to London. During the voyage from Quebec to London certain portions of the deck load on board the Shooting Star were jettisoned, and the circumstances under which this took place were those stated in the protest, all the facts being taken as admitted, and to form part of the special case. All the goods loaded on board the Shooting Star at Quebec had been duly delivered to the deft., with the exception of those goods which had been jettisoned as aforesaid. The pits. contend that the loss of the goods so jettisoned is a particular average loss, in respect of which no contribution is due from them to the deft. The deft., on the other hand, contends that the said loss is a general average loss in respect of which contribution is payable by the plts. to the deft. It is admitted that hitherto it has been the practice of average adjusters not to allow as general average the jettison of such portion of the deck load as is immediately before the jettison in a state of wreck, but this admission is to be taken without prejudice to the right of the deft. to contend that such practice cannot affect the law. The question for the opinion of the court is whether the deft. is, under the circumstances of the case, entitled to any contribution from the pits, in respect of the goods jettisoned as aforesaid. The material facts are thus given in the protest:On the 3rd Nov. 1863, the master of the Shooting Str appeared before a notary public, and, as such ap pearer, declared, "That the ship being tight, staunch, and strong, and well and sufficiently manned, and having received, and well and properly loaded and stowed away aboard of her at Quebec a cargo of properly secured for London, did, on the 5th Oct. deals and staves with the deck load and boats set sail from Quebec. That on the 13th Oct. it blew a gale from the W.S.W., and the ship laboured and strained excessively, and though sail was reduced, she took so many seas on board, that her decks were continually flooded, and the deck load was broken adrift, whereupon the same was secured as well as possible. That at dusk of the same day she had made three feet of water in the well, which, though all hands worked at the pumps, had increased by midnight to ten feet. That on the following day the gale raged heavy cross sea, which broke over the said ship in with unabated fury, accompanied by a tremendous such immense bodies as to keep her deck continually inundated; and the said ship labouring and straining excessively, and sucking a great deal of water, and damaged one of the boats, the said appearer was the deck load constantly breaking adrift, and having compelled, for the safety and preservation of the said ship, her cargo, and of all on board, to throw part of her deck load overboard to prevent it doing further damage. That his ship nevertheless made bad weather of it till the gale abated, and at six pm the same day the pumps sucked, and the crew were sent below. That on the 20th of the same month she encountered another gale, and made very bad weather of it, shipping such immense bodies of water that her pumps were kept constantly going. That the next day she continued to make fearful weather of it, and at 2.30 a.m. shipped a very heavy sea on the port beam, which stove the long-boat in bits, split the whale-boat, and stove in the gig, knocking the port quarter away, and breaking the gunwales, and damaging a fourth boat, at the same |