No. 80. Koster v. Reed, 6 Barn. & Cress. 21, 22.

India Company, 3 East, 192 (6 R. R. 589). In Bull. N. P. 293, it is stated as the first general rule of evidence, that the party must give the best evidence that the nature of the thing is capable of.1

ABBOTT, Ch. J.-The only question is, whether in this case there was sufficient to be left to the jury as evidence of a loss by perils of the sea or by barratry? The defendants now contend that the plaintiff should have proved that which it was impossible for him to do, viz. that the ship had never been heard of, for she had been heard of, and the account received was that she foundered at sea. The evidence given at the trial was, that the vessel, with the goods insured on board, sailed from Leghorn in April 1821, for Lisbon, * that she never arrived at that place, [*22] and that a few days after her departure from Leghorn the witness heard that she had foundered at sea, but that the crew were saved. Taking the whole of that account together, it proved a loss by perils of the sea, but we are asked to take half of it only, viz. that the crew survived; and to exclude from our consideration that which related to the loss of the ship. I think we should not be justified in so doing, and that it is impossible for us to say that at this distance of time it was incumbent on the plaintiff to send all over Europe in search of the crew of this vessel, whom we must suppose to have been foreigners, the ship being foreign, and trading between foreign ports. For these reasons, it appears to me that there was sufficient evidence to be left to the jury, and that the verdict ought not to be disturbed.

BAYLEY, J. — I am of the same opinion. When it is said that a ship has not been heard of, I take that to mean that no intelligence has been received from persons capable of giving an authentic account; and not that mere rumours have never been heard. In that sense the vessel in question had never been heard of. But although such evidence has frequently been given, it cannot in all cases be essential. In the present case the plaintiff was owner of the goods, not of the vessel, and the underwriters might have just as good means of inquiring about the crew as the plaintiff had.

1 See the observations upon this rule in 1 Stark. on Ev. 389, and particularly upon the case of Williams v. E. I. Company, which seems to have occasioned some apprehension as to the nature and extent of the rule. The expression used

in Bac. Abr. Evidence (I), that "the law requires the highest proof the nature of the thing is capable of," appears to be more appropriate, and less liable to misconstruction than best evidence.

No. 80. Koster v. Reed, 6 Barn. & Cress. 22, 23. Notes.

Why then is it not as reasonable to call upon them to prove affirmatively that intelligence of the ship had been received, as upon the plaintiff to prove the negative? In the absence of any such evidence, I think it was fair to presume that the ship perished

at sea.

[23] * HOLROYD, J.-I think there was sufficient primâ facie evidence of a loss by perils of the sea, and it was just as reasonable to expect the defendants to give evidence to rebut that, as to call upon the plaintiff for evidence in confirmation. LITTLEDALE, J., concurred.

ENGLISH NOTES.

Rule refused.

Twemlow v. Oswin (1809), 2 Camp. 85, 11 R. R. 670, cited in the argument of the principal case, was the case of an outward-bound ship, which sailed from Liverpool on the 14th April, 1807. At the trial on 1st March, 1809, a clerk in the plaintiff's shipping-office swore that the ship had not been heard of. Sir James MANSFIELD, Ch. J., held this was evidence to go to a jury of the loss of the vessel before reaching her port of destination.

There must be some evidence that the ship sailed on the voyage insured. It is enough for this purpose to show the destination by charterparty, or by any document from which the inference may be drawn that the captain was furnished with papers for that voyage according to the practice of the custom-house. Cohen v. Hinckley (1809), 2 Camp. 51, 11 R. R. 660.

AMERICAN NOTES.

This case is cited in 1 Parsons on Marine Insurance, p. 545, and its doctrine is there approved, and is sustained by Brown v. Neilson, 1 Caines (N. Y.), 525; Gordon v. Bowne, 2 Johnson (N. Y.), 150 (KENT, Ch. J.); Ruan v. Gardner, 1 Washington (U. S. Circ. Ct.), 145 (taken by privateer and not heard of for three years); Paddock v. Franklin Ins. Co., 11 Pickering (Mass.), 227. In the last case, SHAW, Ch. J., said: "Where a vessel has sailed, apparently in a seaworthy condition, and never been heard from, as such an event is of rare occurrence, and the extraordinary perils and dangers to which she is exposed are very great, the law, in the absence of other proof, will presume that the loss was occasioned by some of those perils." But otherwise (he continues) if the officers and crew are saved and give a different account. In Merritt v. Thompson, 1 Hilton (N. Y. Com. Pl.), 550, a vessel sailing on a voyage, ordinarily taking four months, was not heard of, nor was her crew, in seventeen, and it was held that it must be presumed that she was lost. The same principle in Oppenheim v. Wolf, 3 Sandford Chancery (N. Y.), 571, the case of the first Transatlantic steamship, President; and so in White v. Mann, 26 Maine, 363; Gerry v. Post, 13 Howard Practice Rep. (N. Y.) 118.

SECTION IX. - Abandonment and Total Loss.
See "ABANDONMENT," 1 R. C. 1-155.

No. 82. THE BONA. ENGLISH AND AMERICAN SHIPPING COMPANY v. INDEMNITY MUTUAL MARINE INSURANCE COMPANY.

(C. A. ADM. 1895.)

RULE.

LOSSES incurred by reason of the master having done what was his plain duty as part of the adventure are not, by English law, accounted as general average.

But where, under stress of extraordinary and unforeseen circumstances, a sacrifice of some part of the adventure is deliberately made for the benefit of the rest, the loss so incurred is a general average loss.

Taylor and others v. Curtis.

6 Taunton, 608-625 (16 R. R. 686).

Insurance.-- General Average.

Resistance to Capture by Privateer.

The expenditure of ammunition, in resisting capture by a privateer, [608] the damage done to the ship in the combat, and the expense of curing the wounded sailors, are not the subject of general average by the law of England.

The plaintiffs declared that they were owners of the ship Hibernia, which was proceeding upon a voyage from this kingdom to the island of St. Thomas with a cargo of merchandise upon freight, and that upon the voyage she was attacked by enemies, viz. by persons acting under the authority of the government of the

United States of North America, who endeavoured to make prize of the ship and cargo, which the master and crew resisted, and thereby, and in the proper and necessary defence of the ship and cargo by the master and crew against those enemies, and in endeavouring to preserve the same from capture, the ship and her furniture were greatly damaged, and the plaintiffs necessarily and properly expended a large sum in repairing the damage: that the ship and cargo were by such resistance and defence preserved from capture, and afterwards completed her voyage: that when the ship was so attacked, and the damage and expense so occasioned and during the voyage, the defendant was the owner of a part of the goods on board of value, and was benefited in respect thereof by the resistance against the attack, and the defence of the ship and cargo, from which the damage and expense accrued, by reason whereof the defendant, as the owner of such part of the goods, became liable to contribute to that damage and expense in a general average; and in consideration thereof promised to pay so much as he, as such owner, was liable to contribute. The second count stated more generally, that in endeavouring to preserve the ship and cargo from capture, the ship and furniture were greatly damaged, and great loss and expense were necessarily and prop[609] erly incurred. The 3d count stated, that on the voyage, a part of the ship's furniture, of value, was utterly lost, and other part sustained damage, which loss and damage were occasioned by acts of the master and crew of the ship, properly and necessarily done by them in order to preserve the ship and cargo from capture by enemies, and being thereby wholly lost to the owners thereof, the ship and cargo were, by the means so used for the general preservation, preserved from capture, and afterwards completed the voyage: that he was during the time that cargo was on board, and of the loss and damage, the owner of a part of the cargo, of value; that he was benefited in respect thereof by those acts of the master and crew; and by reason thereof became liable to contribute to that loss and damage in a general average, and promised to pay, and they averred his proportion, and notice. The 4th count was indebitatus assumpsit, for general average payable upon and in respect of merchandises of the defendant, carried in the plaintiffs' ship the Hibernia, from this kingdom to parts beyond the seas. The cause was tried at Guildhall, at the sittings after Michaelmas Term, 1816, principally on admissions, and it

*

No. 81. Taylor v. Curtis, 6 Taunt. 609, 610.

appeared that the plaintiffs were owners of the Hibernia, of 6 guns and 22 men. The defendant was proprietor of goods loaded on board that ship for a voyage from London to St. Thomas; in the course of which the ship was attacked by an American privateer, of 22 guns and 125 men, then hostile; the captain and crew resisted the attack for nine hours, in the course of which the American was thrice compelled to sheer off, and as often returned to the combat, but the Hibernia ultimately disabled and beat her off, with the loss of two of the Hibernia's men killed and several wounded, proceeded to her port of destination, and delivered her cargo in safety to the consignees. The Hibernia sustained considerable damage in the engagement, * both in her hull [*610] and rigging, which were repaired at a considerable expense

to the owners. The owners also incurred a further expense in providing medical and surgical assistance for the wounded mariners, and expended in the engagement a considerable quantity of gunpowder and shot, part of the stores and outfit of the ship, and now sued to try the question whether the defendant were liable, in respect of his part of the cargo, to contribute to these expenses as general average. The jury found a verdict for the defendant, subject to a reference as to the amount, but liberty was reserved to the plaintiff's to move to set aside the verdict, and enter a verdict for the plaintiffs.

Lens, Serjt., in Hilary Term accordingly moved.

GIBBS, Ch. J., inclined to grant a rule nisi, because two books of high estimation in the profession, but not at present to be cited as authority,1 state, that damage sustained in defending the ship, and the healing the wounds of the sailors hurt in a combat, is general average (Park on Insurance, 6th ed. vol. i. p. 173; Marsh. on Insur., 2d ed. vol. ii. p. 535); they cite no authority. Another treatise. (Abbott on Merchant Shipping, 4th ed. p. 366) also, by an author of high character, observes, that there is no authority for this position; that foreign writers differ; that if a ball passes through a bale of goods, the damage rests where it falls; and if so, why is a ball passing through a ship's side to be general average?

1 Lens, arguendo. Books of living authors are not usually to be cited, yet there are such extant which in future time (may that period be long distant!) will be

Rule nisi.

cited as of equal authority with Emerigon and Le Guidon. Laudari nihil est nisi ab laudato viro.