said ship and cargo and of the lives of all on board, and particularly with the purpose of preventing the said ship from going on shore, the captain slipped his two chains overboard, got the said ship under sail, and succeeded in entering the port of Sanzon, which is situated to the north of Point Boeuf on the French coast, and is a tidal harbour: where, by reason of its being then low water, the said ship took the ground. Whilst lying in the said harbour, and in consequence of the natural flux and reflux of the tide, the said ship floated about eight days only in the month, and then only at the top of spring tides. By reason of the wind being contrary, the said ship got nieped, and was therefore unable to leave the said harbour until the 10th day of May in the same year, when she proceeded to sea, and was then found to make water in consequence of her having been so long on the ground, and of being thereby strained, so that it became necessary to keep the pumps going. The said ship reached the Dublin River, on the 21st day of May in the same year; and her cargo was then found to be damaged. The question for the opinion of the Court is, whether the said ship was stranded in the harbour of Sanzon. If the Court shall be of opinion in the negative thereof, then the plaintiff agrees that a judgment shall and may be entered against him of nolle prosequi immediately after the decision of this case, or otherwise, as the Court may think fit; but, if the Court shall be of a contrary opinion, then the defendant agrees that judgment shall be entered against him, by confession, for 1547. damages, immediately after the decision of this case, or otherwise, as the Court may think fit, and that judgment shall be entered accordingly. 1853. CORCORAN V. GURNEY. 1853. CORCORAN v. GURNEY. Bovill, for the plaintiffs. The question is, whether what took place is to be considered a stranding within the meaning of the word in the usual memorandum. The principle laid down in the authorities is, that, when the vessel takes the ground in such a manner that the underwriters must have contemplated that in the ordinary course of navigation the vessel would so take the ground, it is no stranding; Hearne v. Edmunds (a), Kingsford v. Marshall (b). But, where the taking of the ground is out of the ordinary course, it is a stranding. And slight circumstances out of the ordinary course will make the difference. In Barrow v. Bell (c) the vessel was, when in harbour, drawn on the mud where vessels sometimes lay: this was done, not in the ordinary course of navigation, but because the vessel, having sprung a leak, was in danger of sinking at her moorings. That was held a stranding. Abbott C. J. there says: "I cannot distinguish this from the case of a ship on the high seas, in danger of being wrecked by a storm, and on that account allowed to be driven by the sails and rudder upon the beach of the main ocean." And Bayley J. says: "The ship in this case was laid on the strand, not in the ordinary course of navigation, but, ex necessitate, to avoid an impending danger." These expressions are very applicable to the present case: the master takes the ship into the harbour, not in the ordinary course of his voyage, but "ex necessitate, to avoid an impending danger;" and this is done at a time of the tide when no one would enter the harbour in the ordinary course of navigation, and the ground is taken in doing So. The cases are very uniform in principle as to what (b) 8 Bing. 458. (a) 1 B. & B. 388. (c) 4 B. & C. 736, constitutes and what does not constitute a stranding: the difficulty has always been in the application to the facts. The test is, whether it was in the ordinary course of navigation or not; Bishop v. Pentland (a), Wells v. Hopwood (b). In that last case Parke J. differed from the rest of the Court; but this was a difference, not as to the principle of law, but as to its application. He defines stranding to be "a grounding different from that which ordinarily and usually occurs to vessels navigating tide rivers and harbours." It can hardly be said that in the present case the ship, which was dragging her anchors, and for the preservation of the ship and cargo and the lives of the crew ran into a tidal harbour at low water, and consequently took the ground, took it in the ordinary and usual way in which vessels navigate tide harbours. The last case on the subject is Magnus v. Buttemer (c). [Crompton J. In that case the vessel took the ground in the harbour for which she was destined from the beginning, exactly as was intended.] Sir F. Thesiger, contrà. There is no dispute as to the general principle. The question really is, What is meant by the ordinary course of navigation in the rule as laid down in the authorities. It is not material that Sanzon was not the port of the ship's destination. It is quite in the ordinary course of navigation that a vessel should be driven to take refuge in a tidal harbour out of her course. Hundreds of vessels every year are driven into the harbour of refuge at Ramsgate; and, as that is a tidal harbour, they must in general take the ground. It would be very strong to say that a grounding in (b) 3 B. & Ad. 20. (c) 21 L. J. N. S. C. P. 119. (a) 7 B. & C. 219. 1853. CORCORAN V. GURNEY. 1853. CORCORAN V. GURNEY. Ramsgate Harbour is a stranding within the memorandum. Nor is it material whether the ship takes the ground in going into a tidal harbour, or after she is in, provided the grounding is in a place where in the ordinary course she would float at high tide and ground at low water; Hearne v. Edmunds (a). All that was done here was that at low tide the captain put the ship on the ground at a spot where, if it had been high water, she would have floated, and have afterwards taken the ground at ebb in the ordinary course. In those cases in which a ship, taking the ground in a tidal harbour, has been held to be stranded some accident has happened. In Bishop v. Pentland (b) and Wells v. Hopwood (c) a rope gave way. In Barrow v. Bell (d) the taking the ground was in consequence of the ship having struck upon an anchor. In Carruthers v. Sydebotham (e) the vessel fell over on her side. In Rayner v. Godmond (g) the grounding was from drawing off the water, which was not in the natural course of the navigation. But in the present case the ship, in the natural course of navigation, was compelled to take refuge in a tidal harbour. That she entered the harbour at ebb tide can make no difference. Bovill, in reply. No case has been cited which lays down a different principle from that laid down in Wells v. Hopwood (c). [Lord Campbell C. J. All the cases, with the exception of Baring v. Henkle (h), concur. The authority of that case must be considered to be very questionable.] The distinction is not between (a) 1 B. & B. 388. (e) 4 M. & S. 77. (b) 7 B. & C. 219. (g) 5 B. & Ald. 225. (h) 1 Marsh. Ins. 232. natural causes and accidents. Nothing is more natural than that a ship should be driven on shore by the storms. The question is, whether it was in the ordinary and contemplated course of the voyage. In Hearne v. Edmunds (a) the ship took the ground, which was, it appeared, the usual course of navigation for vessels going up the river where the event occurred. Lord CAMPBELL C. J. I am of opinion that this was a stranding within the meaning of the memorandum. We have excellent guides, both as to what circumstances constitute a stranding, and as to what do not. Lord Tenterden, in Wells v. Hopwood (b), says that a rule may be fairly collected from the cases: and he goes on: "And that rule I conceive to be this: where a vessel takes the ground in the ordinary and usual course of navigation and management in a tide river or harbour, upon the ebbing of the tide, or from natural deficiency of water, so that she may float again upon the flow o tide or increase of water, such an event shall not be considered a stranding within the sense of the memorandum." And Tindal C. J., in delivering the judgment of the Common Pleas in Kingsford v. Marshall (c), after saying in substance the same thing as Lord Tenterden, goes on: "What more, then, is necessary? We think a stranding cannot be better defined, than it has often been in several of the decided cases, viz. where the taking of the ground does not happen solely from those natural causes which are necessarily incident to the ordinary course of the navigation in which the ship is engaged, either wholly or in part, but from some (b) 3 B. & Ad. 34. (a) 1 B. & B. 388. (c) 8 Bing. 464. 1853. CORCORAN V. GURNEY. |