No. 73. Kidston v. Empire Marine Ins. Co, L. R. 2 C. P. 365, 366.

that the rule of law which in this country entitles the shipowner to recover these charges under an insurance like this against the underwriters is in strict accordance with sound policy. For if the master knows, where the ship has been lost and the cargo

may be sent forward to its destined port, that his owner [* 366] will be indemnified * in respect of the cost which he may incur in so forwarding the goods, he will have every inducement to save the property and complete his contract with the owner of the cargo; whereas, if the cost of the conveyance of the goods for the rest of the voyage is to fall upon his owner without recourse to the underwriters, he will be exposed to the temptation of evading the performance of what may at least be termed a moral duty, and may leave the cargo to its fate in the foreign port in which it may have been unshipped.

We are of opinion, therefore, that whether it be the duty or not of the master, under circumstances like these, to forward the cargo in another ship to its destined port, that upon the facts of this case there was a total loss of the freight when the ship had become a wreck, and the goods had been landed at Rio; and that the cost incurred by the master in shipping the goods by the Caprice, and causing them to be conveyed to this country, is a charge within the express terms of the suing and labouring clause, and that the amount, or the due proportion of it, is recoverable under that clause against the underwriters.

The cases of Great Indian Peninsular Railway Company v. Saunders, 1 B. & S. 41, 30 L. J. Q. B. 218; in error, 2 B. & S. 266, 31 L. J. Q. B. 206, and of Booth v. Gair, 15 C. B. (N. S.) 291, 33 L. J. C. P. 99, have been pressed upon the attention of the Court, as showing that a loss of this nature is a partial loss only, and cannot be recovered against the underwriters by reason of the warranty against particular average. But these were cases of insurance upon goods, to which the pro ratâ doctrine has no application, and where, the whole or a great portion of the goods still existing in specie, it was impossible to hold that a total loss had arisen. And Mr. Justice BLACKBURN appears to have marked the distinction between the case of goods and that of freight, and forborne to intimate any opinion upon the point which we have now to determine.

But another case from the United States has been cited under the high authority of STORY, and where it is supposed to have

No. 73.

Kidston v. Empire Marine Ins. Co., L. R. 2 C. P. 366, 367.

been held that, under circumstances like these, there was a partial and not a total loss of freight, and that the underwriters were not liable upon the policy; but this case of Jordan v. Warren

Insurance * Company, 1 Story R. 342, has really no appli- [* 367] cation to the case before us. There the insurance was on

freight from New Orleans to Havre; the ship was run aground and injured before it left the Mississippi, but returned to New Orleans, and after unshipping the cargo was completely repaired and reinstated, and might have taken the cargo on board again and completed the voyage to Havre; but the cargo, having been much damaged, was sold at New Orleans, under an arrangement between the parties, and the ship proceeded on another voyage, not to Havre, but to England. Under these circumstances the shipowner, who claimed as upon a total loss of freight, was held entitled to recover only upon a partial loss, that is to say, for the loss of freight upon some part of the cargo which had been destroyed before it was relanded at New Orleans, and which therefore could never have earned freight at all by the completion of the voyage. No question was raised there concerning particular average, or the suing and labouring clause in a policy. The case, therefore, has no bearing upon the present; but it may be remarked that, where any claim to freight at all was treated as recoverable, it seemed to be upon the footing of a total loss reduced to a smaller amount by expenses incurred for the benefit of the underwriters, and spoken of as salvage.

It remains only to observe upon the evidence given in this case that expenses incurred in preserving the subject-matter of insurance were designated as particular charges, and not as particular average. We think that this evidence in no wise controls or varies the language of the policy, and that it is admissible to show the mode in which expenses of this nature are treated by mercantile men. But this evidence, or the usage which it proves, is in affirmance of the common law of England, which of itself defines the nature and character of these charges, and if rejected and struck out of the case would leave the question in the cause as it was before.

We think, therefore, on the whole, and upon the true construction of the policy, that on the destruction of the ship and the landing of the cargo at Rio there was a total loss of the freight, unless it could be averted by the forwarding of the cargo by

- Kidston v. Empire Marine Ins. Co., L. R. 2 C. P. 368. Notes.

[368] another ship to Great Britain; that the forwarding the cargo by the Caprice was a particular charge within the true meaning of the suing and labouring clause, and not the conversion of total loss into a partial loss, which brought the case within the warranty against particular average; and that the due proportion of that particular charge, that charge being thus within the suing and labouring clause, and incurred for the benefit of the underwriters to preserve the subject of the insurance, and to prevent a total loss, is recoverable under the policy in this action.

The judgment of the Common Pleas must therefore be affirmed. Judgment affirmed.

ENGLISH NOTES.

The principle of the decision in this case was followed, and perhaps extended, in that it was applied to the expenses incurred for salvage services in the proper sense of the word, by the Court of Appeal in Lohre v. Aitchison (1878), 3 Q. B. D. 558, 47 L. J. Q. B. 534. But that judgment was reversed by the House of Lords (s. n. Aitchison v. Lohre, No. 89, p. 449, post), under the advice of Lord BLACKBURN in an elaborate judgment, the effect of which was echoed by the LORD CHANCELLOR (Earl CAIRNS) and Lord HATHERLEY.

This judgment of the House of Lords is doubtless binding on all inferior Courts in England, so that, in the case of salvage proper, where no bargain is made for remuneration, and the right to remuneration for successful service depends merely upon the general maritime law, the expense cannot be recovered under the suing and labouring clause. It is, however, not beyond the competence of the House of Lords to reconsider the principle of that decision, having regard to the considerations brought to bear on the question in the 6th edition (1887) of Arnould on Insurance, by David Maclachlan. See his note, p. 807. To aid the construction of the words "sue, labour, and travel" in the clause, which probably stood in a Lloyd's policy so early as the latter part of the reign of Henry VI. (say about 1450), Mr. Maclachlan cites, from the Paston letters as edited by Mr. Gairdner, comprised within the period 1422-1509, and from an extract given by Mr. Gairdner of a petition of the widowed Countess of Warwick shortly after the death of her husband (the Kingmaker) in 1471, various passages clearly showing that the word "labour" was within that period used in an idiomatic sense, namely, to persuade or prevail upon another to take trouble or use influence on behalf of the person concerned. So that, adopting this idiomatic meaning, the words "sue," "labour," and "travel"

No. 73.

- Kidston v. Empire Marine Insurance Co. Notes.

would each have a definite and intelligible meaning, the word "sue in its obvious sense of "ask" or 66 'petition;" the word "labour” perhaps including that, and at all events signifying something more, to be briefly rendered "persuade" or "prevail upon;" the word "travel" (or "travail") having obviously the meaning of the word "labour" in its modern popular sense.

It is impossible to ignore the weight of these considerations, which have apparently escaped the notice of modern authorities, and even the usually exhaustive research of Lord BLACKBURN. Whether they would induce the House to overrule their own decision, if the facts in another case were precisely similar, can hardly be predicted; but in any Court which is not bound by the authority of the House of Lords, they must certainly be taken into account. Assuming Mr. Maclachlan's construction to be right, it might still be a question whether the clause could apply to the expenses of salvage of a derelict ship; but it would perhaps be hypercriticism to draw the line at such a case.

Where live cattle were insured on a voyage from New York to Glasgow against "all risks, including mortality from any cause whatsoever: " the ship was obliged by stress of weather to put into Halifax, where she was detained seventeen days for necessary repairs, and there the insured of the cattle ordered and paid for extra fodder for them. It appeared that a supply of fodder sufficient for an ordinary voyage had been provided before the vessel left New York, but that if it had not been for the extra supply some of the cattle would have died. It was held that the insured were entitled to recover the expense of the extra fodder under the suing and labouring clause. The Pomeranian 1895, P. 349, 65 L. J. P. 39.

It has been held that, under this clause, the insured are not entitled to expenses incurred pending the voyage to ascertain whether damage has been done, if none has occurred in fact. Lysaght v. Coleman (C. A. 1894), 1895, 1 Q. B. 49, 64 L. J. Q. B. 175, 71 L. T. 830.

AMERICAN NOTES.

Parsons cites this case in the Exchequer Chamber, L. R. 2 C. P. 357 (2 Marine Insurance, p. 155). In addition to the case of Schieffelin v. N. Y. Ins. Co., 9 Johnson (N. Y.), 21, the doctrine that transshipment is the duty of the master when it will obviate loss is sustained by Bryant v. Com. Ins. Co., 6 Pickering (Mass.), 130; Hugg v. Augusta Ins. & B. Co., 7 Howard (U. S. Supr. Ct.), 595; Adams v. Haught, 14 Texas, 243; Williams v. Kennebec M. Ins. Co., 31 Maine, 455; Smith v. Martin, 6 Binney (Penn.), 262; Treadwell v. Union Ins. Co., 6 Cowen (N. Y.), 270. Beach cites the principal case (2 Insurance, sect. 954).

Ordinarily official duties are not to be compensated by salvage. Hobart v. Drogan, 10 Peters (U. S. Supr. Ct.), 120.

The principal case is largely commented on in Alexandre v. Sun M. Ins. Co., 51 New York, 253, where the holding was that the "suing and laboring" clause does not embrace expenditures to repair losses caused by risks insured against. The Court said: "This case is a clear authority that the plaintiff's rights in the case before us are not prejudiced by the non-existence of an abandonment. On the other branch of the case the authority is not so strong. The vessel was in port at Balize. The general average expenses of $581 had been incurred, for which the defendant is responsible. There she was, and such as she was, her owners had, and could use her in their discretion. It was not like the case of the freight which required an expenditure to give it an actual existence. The vessel was present in port physically. How much she was worth there before the repairs, or how much she was worth there after the repairs, does not appear. Nor does it appear whether she was worth more or less there than in New York. But she was there and had some value. I do not see how it can be said that the repairs at Balize were about the defence, safeguard, or recovery' of the vessel. She needed no defence or safeguard. She was quietly in the port of a friendly nation. She was safe from storms or perils, nor was any expense needed or incurred for her recovery. She was in the master's hands, and no one proposed to interfere with her. Although she would not have been safe at sea, she was safe at port. Expenses for the safeguard of a ship cannot properly be said to be those by which she is put in a condition of seaworthiness. The two ideas are essentially different. The sum of $8769 spent at Balize was for the improvement of the vessel, rather than for her safeguard, defence, or recovery."

"Upon an examination of all the cases to which attention has been called, I have not been able to find any that would authorize this recovery; nor do I think it comes within the spirit of the contract. Had full repairs been made at Balize, the defendant would have been liable for them only to the amount of its insurance. The repairs were made for the improvement of the vessel, and these, it has been held, are not within the suing and laboring clause. The expenses were not incurred for the defence, safeguard, or recovery of the property. There was no impending disaster against which they formed a protection. In my opinion, neither upon this clause nor upon the general terms of the policy can the claim of the plaintiffs be sustained."

The principal case is cited and approved in Cory v. Boylston F. & M. Ins. Co., 107 Mass. 140; 9 Am. Rep. 14.

In Buzby v. Phoenix Ins. Co., 31 Federal Reporter, 422, it was held, on the authority of Aitchison v. Lohre, 4 App. Cas. 755, that under a policy of insurance containing the clause, "free from particular general average less than fifty per cent," there can be no recovery from the insurer of salvage and agents' expenses, where there are other insurers and the proportion of loss payable by respondent is less than fifty per cent of the amount of the policy. The Court said: "The question is one of much importance and considerable difficulty. In this country it is undecided. It was so in England until the recent case of Aitchison v. Lohre, 4 App. Cas. 755, when it was determined in favor of the insurers. Without this authority I am not certain what conclu