Ex.]

of underwriters on the ship, and of plt. with the ship, at the time of and consequent on its abandonment; and thirdly, of the verdict being against the weight of evidence; and against this rule,

KLINGENDER V. THE HOME AND COLONIAL INSURANCE COMPANY (LIMITED). [Ex. tain would not alter the question as between owner and underwriters. What was not reasonable in a commercial and business sense, having regard to the interests of the owners of the ship and the goods, was not practicable. It was not a mere Milward, Q. C. and Quain, for defts., now showed question of "prudent owner." If the act were done cause. The attention of the jury was directed to for the benefit of all concerned, then the voyag the imperishable character of the cargo-coal and was at an end, and the freight prevented from being iron; but the captain's evidence was that he sold earned by perils of the seas. That point was setti the cargo, not for the purpose of saving it or the by Blasco v. Fletcher, 9 L. T. Rep. N. S. 160:14 ship, but because he wanted money for the ship's C. B., N. S., 147; 32 L. J. 284, C. P., a case whil use. It was said, contra, that the proper point was showed what was the proper question to have bet not left, but it was difficult to discover from the left here. The defts.' contention, that after repeterms of the rule what that proper point was. The ing at Liverpool, the shipowner was bound to s questions left were: was there a loss of the ship? was her back to pick up the cargo and finish her voyag there a loss of goods? and on those two the case and that the goods owner was to keep the good proceeded throughout. The question of loss of there in the meantime, no matter at what cost, was freight was involved in them, and a third question, absurd. Then, if there were no such obligation, it was which it was not sought to put to the jury, ought clearly a total loss. If either the goods owner was not now to be discussed. The terms in which the entitled to send them on by another ship, or th learned judge laid the case before the jury were shipowner was not bound to go back to resume precisely those in Philpott v. Swann in the C. P., the voyage, then, as a matter of common sense, the 5 L. T. Rep. N. S. 183; 11 C. B., N. S., 270; 30 original freight was prevented from being earned L. J. 358, C. P.; Phillips on Insurance, 3rd ed., sect. A constructive loss of the ship involved a loss of 1142. But it was now said there was a third question, freight; and if the goods were properly sold the viz., was the shipowner prevented by perils of the freight was lost, though the converse of those prope sea from carning freight? That was a wide general sitions did not necessarily follow. If perils of the question, and was involved in the other two. If the sea (which were what were insured against) were shipowner chose not to repair or take his ship to the origin of the interruption of the voyage, it w some near port where she could have gone, then it immaterial what intervened: (Naylor and others was an abandonment, and he could not come on the Palmer and another; the Cooles case. 8 Ex. 79 underwriters. He exercised a discretion, and it was 22 L. J. 829, Ex.) [MARTIN, B.-Surely, caus not a loss of freight from perils insured against. prorima non remota spectatur is the rule?] Yes: [BRAMWELL, B.-Suppose this had been a cargo of but it was a question, what was the proximate cause oranges or rice, and that it had not been damaged, of taking it out of the owner's possession: ( but had been sold under the circumstances here, v. The Universal Marine Insurance Company; would that have been a total loss of goods?] If it Cape Hatteras case, 8 L. T. Rep. N. S. 705; & were necessary to expend more on the cargo to get L. J. 170, C. P.; 14 C. B., N. S., 259.) It was wrog it away from Monte Video than its value, then to assume that the captain sold for want of money, there would be a total loss of freight at Monte nor did the fact that he wanted it prevent a totallas Video. CHANNELL, B.- The plt.'s point is, that One of three things must be done, either to stor the questions of total loss of ship and total loss of the goods, or to send them on by another ship, or goods do not exhaust the question of total loss of a dernier ressort, to sell them. No doubt the question freight.] In the way it was put at the trial by the of loss of goods and ship might be put so as k learned judge it was submitted that it did. It was include the question now insisted on, but the learned idle to put the third question suggested by the other judge put it so as to confine it to those two que side, as it was involved in those which were put. tions. The delay here was not unreasonable, and The ship, if it could not be repaired at Monte that question ought to have been submitted to the Video, should have been taken to Liverpool to be jury; the proper question for them being, whether repaired, and then have returned to Monte Video by perils of the sea, having regard to delay, expe and picked up her deposited cargo, and resumed and and risk, it was not rendered impossible in a m completed her voyage. The jury had found no cantile point of view for the freight to be earned by constructive loss of either ship or goods, and there- prosecuting the voyage insured against? They fore there could be no total loss of freight. The cited also and commented on judge was not dissatisfied with the verdict. They cited

Mordy v. Jones, 4 B. & C. 394;

Moss and others v. Smith and another, 9 C. B. 94; 19 L. J., N. S., 225, C. P.;

Stuart v. The Greenock Marine Insurance Company,
2 H. of L. Cas. 159;

The Scottish Marine Insurance Company v. Turner,
1 Macq. H. of L. Cas. 334, 340;
Anderson v. Wallis, 2 M. & S. 240;
McCarthy v. Abel, 5 East, 388;

Atkinson v. Abbott, 11 East, 135; 1 Camp. 135;
Atkinson v. Ritchie, 10 East, 530;

Rosetto v. Gurney, 11 C. B. 176; 20 L. J. 257, C. P.;
Arnould's Insurance, by Maclachlan, 724, 977, 987.

Brett, Q. C., Mellish, Q. C., and C. Russell, for plts., contra, in support of their rule.-There were no means of repairing the ship at Monte Video, nor was it safe to leave the cargo there, and the cost of warehousing it would have exceeded its value, and no vessel could be found to take it on. Of neces

sity, therefore, the captain sold it for the ship's purposes. The shipowners might be debtors to the cargo owners. Even an improper sale by the cap

Bruce v. Jones, 7 L. T. Rep. N. S. 748; 1 H. &C. 769;

Shipton v. Thornton, 9 A. & E. 314 (per Lord D

man, C. J. at p. 336); 8 L. J., N. S., 73, Q. R Phillips on Insurance (3rd edit.), sect. 1630.

Trevelyan (amicus curia) referred to an American case, Loud v. The Citizens Mutual Insurance Company 2 Gray's Massachusetts Rep. 221.

Cur, adv. val.

June 11.-The judgment of the Court (Mart Bramwell, Channell, and Pigott, BB.) was o▼ delivered as follows by

MARTIN, B.-This case, which was very thy argued a few days ago, was a rule obtained set aside the verdict for the defts., upon thre grounds: the first was misdirection; the second was the rejection of evidence; and the third was that the verdict was against the evidence. With respect the rejection of evidence, it seemed, without puting any bad faith to any one, that the objection or rather the evidence was not pressed upon learned judge in such a manner, and to such an

the

Ex.]

KLINGENDER . THE HOME AND COLONIAL INSURANCE COMPANY (Limited).

stent, that he could understand that it was in-
aded to be insisted that it properly was not
missible. But, on reference to the shorthand
riter's note, and the note of the learned judge, and
the learned judge himself, it seems clear to us
at the evidence was not offered in such a manner
s to entitle the counsel offering it afterwards to
ove the court for a new trial on the ground of its
jection. With respect to the misdirection, we are
opinion that, under the circumstances of this
use, there was no misdirection. We are very far
on saying that, in an action on a policy of insur-
ace for a total loss of freight, where, as in every
use, there may occur the question of whether there
a total loss of the ship or a total loss of the
ds, the question is necessarily concluded by the
vision of those two questions; indeed, we are of
inion that cases might be put where the answers to
tose questions might not be conclusive at all. There
ere one or two instances put in the course of the
gument which it is useless to put here. We are
opinion that, under the circumstances of this case,
e questions which were submitted to the jury were
oper questions for the determination of the case.
ow, as I have stated, the action was on a policy
insurance for a total loss of freight. The freight
as a freight to be earned by the ship in carrying
argo from Rio Janeiro to San Francisco. The
rgo was coal and iron, and the circumstances
ere that the ship set sail from Rio; and on her
issage down the eastern side of South America
stained considerable sea damage. Some of the
rgo was thrown overboard, and the loss of freight
respect of that has been paid into court. The
ip then put into a port in the Falkland Islands,
d a further portion of the cargo was there put on
ore, and the money has been paid into court in
der to cover the freight of it. The ship then
eeeded on her voyage, and met further bad
ather, and the result was she put back and came
to the port of Monte Video, in consequence of
e injury sustained by and by reason of the bad
ather. Upon her arrival at Monte Video the
ite of things was this: the town was in a state
siege, a hostile army was in the neighbourhood,
d the vessels in the harbour were being with-
awn from the town in order to get out of reach of
e shot expected to be fired on the town from the
ps of war. The ship arrived in the month of
tober, and the captain thought it right to dismiss
e crew, to land the cargo and warehouse it, and he
nained at Monte Video till the February follow-
3; and in that month he took the step of selling
e cargo and receiving the money; and, without
puting any bad faith to the captain, or anything
ong, according to his own statement he says, "I
d it on the 14th Feb.; I had tried to send it on;
realised a certain sum of money ;" and in another
rtion of his evidence he says, "I sold it for the
rpose of getting the money for the ship's use."
ow that is his statement with respect to the sale of
is cargo; and supposing that the matter had stood
ere, I think it perfectly clear that there would
ive been no evidence to go to the jury, upon what I
ve merely stated, that there was a total loss of
is freight by the peril of the sea, because in
ality it was not brought about by a peril of the
a. The rule is, that to entitle the assured to
Cover upon a policy the loss must be the
rect and immediate consequence of the peril
sured against, and not a remote one. There-

re, I apprehend, assuming there was nothing
ore than what I have stated, there would be no
idence to go to the jury of a total loss of this
ight. Under those circumstances, Mr. Brett con-
aded that, by reason of two circumstances which
insisted on, there was a total loss of the freight.
le first was, that there was a constructive total

[Ex.

loss of the ship, and if there was a constructive total loss of the ship, that that would involve a total loss of the freight insured. This was what Mr. Brett put forward as the first ground for making what occurred a total loss of freight; and the learned judge could do nothing else than leave the questions to the jury; he left all the questions to the jury whether or not the circumstances were such as to create a total loss of the ship; and the jury found they were not. Mr. Brett afterwards contended, secondly, that there was a total loss of goods, and he contended again, from what had occurred, that there was a total loss of the freight; and if he were right, it probably would be so. In my judgment, perhaps the learned judge might have been justified in withdrawing that question from the jury, and ruling, as a matter of law, that there was not a total loss of those goods. But I think there can be no objection to the judge, when the counsel states there may be a matter of law and an inference of fact, leaving it to the jury for the purpose, we hout himself ruling at once that there was no case to go to the jury. It seems that in this particular case, and under those circumstances, the judge did leave the proper question to the jury, assuming that this last question was a question for them at all. Therefore we are all of opinion that, under the circumstances of this case that were proved on the trial, the course taken by the judge was correct, and that there was no misdirection or any default in the mode in which he left the case to the jury. The third ground was that the verdict was against the evidence. The judge states that in his opinion the verdict was quite right, and I believe we all concur in the statement which he gives. We all concur with the learned judge in thinking that the verdict was right, and that there is no ground to set it aside on the ground stated. Therefore the rule will be discharged.

BRAMWELL, B.-I am of the same opinion. With respect to the two questions left to the jury, Lush, J. reports that he left the two questions made at the trial. He left the existence of those two grounds for the jury, and they negatived them. He did not say negatively to the jury or by implication that there could be such a total loss, but he put the only two views, on which it could have been contended that there had been, to the jury. If he would have been right in treating it as a total loss of the freight, I think there may be a fault in his summing up.

Brett, Q.C.-Will your Lordships in such a case give leave to appeal?

MARTIN, B.-Oh, no.

BRAMWELL, B.-There is great difficulty in giving you leave to appeal after the opinion of my brother Lush.

Rule discharged; leave to appeal refused. Attorneys for plts., Gregory, Rowcliffe, and Rowcliffe, 1, Bedford-row, agents for Duncan, Squarey, and Co., Liverpool.

Attorneys for defts., Flux and Argles, 3, East India-avenue, Leadenhall-street, E.Ç.

CITY OF DUBLIN STEAM-PACKET Co. v. THOMPSON-MARGARET v. TUSCAR. [IRELAND. ADMIRALTY COURT (IRELAND).

Kingstown harbour about one hour before, with a nice sailing breeze, at a rate of four knots, and was one of those in the fleet which had not any lights exhibited. Her crew, which consisted of four hands, immediately after clearing the harbour, are disposed of as follows: the skipper, with one man and a boy, below asleep; the only remaining hand, Oliver, on deck at the helm. The evidence of Oliver, the only witness to the earlier part, and nearly the only witness to the entire of the matters now in question, is, that being at the helm from the time of leaving Kingstown until the collision, when he arrived at the fishing ground, he saw the three lights of the Tuscar between three and four miles off; he was steering east, the Tuscar west, and end on. He saw her change her course when half or a quarter of a mile off, and when on his (the Margaret's) port quarter, and port to go N.W., he (Oliver) shouted to the crew below for the lantern, which it was the habit to keep below until required. The boy brought it up with a small lighted candle in it, of about ten to the pound. That was about ten minutes before the collision, and it was there held by the boy over the trawler's port bow, burning bright. In seven or eight minutes after the steamer again altered her course, and starboarded, opening her three lights. When the steamer had changed her course a second time, he (Oliver) called to the skipper to bring up the torch (afterwards called the flare-up), which was held over the port side of the Margaret, amidship for two or three minutes before the collision. The skipper shouted to him to hard a-port, but no sooner was the helm up than the steamer, which had been coming on at a rapid pace, ran into the Margaret on the port side, and in a few minutes she went to the bottom. Now, this evidence-corroborated, as to the latter part, by the skipper and boy-if otherwise credible, supports the petition. But the defts. present a very different view of the case. All their witnesses, without variation, depose that between five and six that morning the steamer, on her voyage from Glasgow for Waterford, was on her proper course down channel for the latter, viz., S.W. and S. & S., and about one mile from Lambay, the master, second mate, with the look-out and man at the wheel on the bridge, when the master, observing the lights in the fleet of trawlers right ahead, ordered to starboard, so as to keep outside them, and to keep the vessel more to the southward, and the steamer was kept so accordingly for about ten minutes. Then, when all the lights were seen broad on her starboard beam, the master ordered the helm a-port, and brought the steamer up to her original course. She was then carrying a topsail, and going about ten knots. Nothing was seen ahead, and she continued on that course for about three or four minutes, when the collision occurred. About one minute before the collision the master and the look-out, with the two others on the bridge, all at the same moment of time, saw a small light about half a point on their starboard bow, about their ship's length off. The master at once ordered hard a-starboard, and, jumping to the speaking trumpet, called down to the engineroom, "Stop her, back her full speed." But the order was scarce out of his mouth when, looking round, he saw the steamer run right into the trawler amidships on her port side, the trawler having been only then seen when right under the steamer's bow. These two narratives as to the course and the changes of course of the steamer differ very materially; but there happily exist in the case certain tests by which the court, since it cannot reconcile, may, at all events, decide between them, namely, the admitted fact of that fleet of trawlers being on the fishing grounds; the undeniable duty thereby imposed upon the steamer to keep clear of them, the steamer being on her

[IRELAND.

usual trip from Glasgow to Waterford; and, lastly, her course being for that trip southerly, and not westerly, and her log as well as evidence showing it to have been S.W. and half S. Reliance, therefore, can scarcely be placed upon Oliver's evidence, that she was steering west when he first made her out, for she at that time was undoubtedly on her course as the two changes in it observed by him, and but two changes, by admission of all parties, were made in it, took place after he had first seen her; nor can it be credited that the steamer, had she been on a westerly course, would have pursued it, as by so doing she would have been brought in among the trawl fleet, which it was her duty and her determination to avoid, and still less can it be reconciled that when on the Margaret's port quarter, she (the steamer) ported to go N.W., still more among them. But this latter statement is to be noticed for another reason, namely, that it was upon her so porting the boy was called to bring up the lantern, and to hold it over the Margaret's bows, which he did for seven or eight minutes. Now, the court cannot conceive any possible reason for such being done, as the natural consequence of that port helm was to bring the steamer altogether out of the way, and it did bring her out of the way of the trawler upwards of a mile according to the steamer's rate of going. Had the steamer been meeting or crossing the trawler's course, then, indeed, the light would have been necessary in order to avoid the chance of a collision. With such views the court cannot but prefer to credit the statement of the steamer on these points. But now the evidence moves forward to the actual crisis of these occurrences. Both parties agree that it was after the second of the two changes in the steamer's course-a change by the bye which the petitioner called starboarding, but which beyond all reasonable doubt was porting-the collision, which then became imminent, occurred. Both parties agree that it took place in about three minutes after that change. The steamer, by the admission of the petitioner, had her proper regulation lights all burning in accordance with the statute. The trawler, be it kept in recollection, a full-decked sailing vessel of 41 tons, confessedly had them not, in violation of the same statute. Now I come to the provisions of that statute which have been in this instance so totally disregarded, namely the 5th and 6th articles of the regulations for preventing collisions, issued in pursuance of the Merchant Shipping Amendment Act 1862. By an Order in Council of Jan. 1863, the 5th article makes it obligatory on sailing ships under way or being towed to carry the same lights as steamships under way, with the exception of the white masthead lights, which they are not to carry. The 6th article enacts, "that whenever the green and red lights cannot be fixed, these lights shall be kept upon deck on their respective sides of the vessel, ready for instant exhibition, and shall, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side." Taking for granted, then, that, from her small tonnage and her occupation as a fishing vessel, the trawler found it difficult or injurious to the handy working of the fishing gear, in compliance with the 5th article, to have her lights fixed, she has, at all events, violated the 6th one in not having kept the green and red lights on deck on the respective sides of the vessel, ready for instant exhibition. Now, in such cases the law has expressly enacted that in every case of collision, if it appears to the court by which such collision is tried that the vio

THE IDA . THE WASA OF NICOLAISTADT.