Power v. Whitmore (1), cited above in the text, in respect to an average contribution. Most of the cases, though not all, in which the claim arising on a foreign adjustment has been rejected, are cases in which the loss contributed for in the foreign adjustment was not insured against in the policy, according to the construction put upon it in the place where it was made; or it did not appear that the foreign adjustment was made according to the laws of the foreign port; or it did appear that, in respect to the claim in question, and the subject insured in the policy on which the claim was made, the assured had not been compelled to settle, and had not actually contributed abroad, on the basis of the foreign adjustment." For these reasons it is submitted that the plaintiffs have been compelled by a competent authority abroad to contribute this sum in order to obtain repossession of the gold, under circumstances which, upon the proper construction of the policy, were in contemplation of both parties as a risk and peril within the operation of which the gold was liable to come; and therefore, upon the construction of this policy according to English law, the underwriters are bound to reimburse the plaintiffs, in order to give them that indemnity which they bargained to receive at the hands of the defendant's company from the perils insured against. Sir G. Honyman, Q.C. (Mellish, Q.C., and Lodge, with him), for the defendant. The underwriters are not liable. The defendant does not dispute the liability to the charges on the gold itself, as to which money has been paid into court; but it is sought to make the gold liable to pay, in proportion of nearly five-sixths of the cargo, towards the expenses incurred in saving part of the ship and the rest of the cargo. For this the gold is not liable; it was landed days before any of this expense had been incurred, or any proceedings taken for the purpose. In the first place it is to be observed that Mr. Lamb tells the authorities that he had landed the gold, whereas it had been landed by the captain. [COCKBURN, C.J. Surely this is immaterial; the captain and Mr. Lamb represent the same interests, and the gold, having got into possession of the Russian authorities, could never have been released without the deposit and subsequent payment of expenses charged upon it.] (1) 4 M. & S. 141. 1869 DENT v. SMITH. 1869 DENT V. SMITH. Mr. Lamb, at all events, was materially interested in getting the gold to contribute; and the claim is apparently made out by adopting the Russian scale of charges, and enforcing that by the French law, and then it is sought to charge this against the underwriters in a policy effected in England on an English ship; and it is admitted that if the ship had remained English the greater part of these charges would not have been made, not being chargeable according to English law, nor, indeed, according to the general maritime law. "The principle of general average, namely, that all whose property has been saved by the sacrifice of the property of another, shall contribute to make good his loss, is of very ancient date, and of universal reception amongst commercial nations. The obligagation to contribute, therefore, depends not so much upon the terms of any particular instrument as upon a general rule of maritime law :" per Lord Tenterden, C.J., in Simonds v. White. (1) And on this it is said in 2 Arnould on Insurance, 3rd ed. p. 799:"Goods landed or sold for the necessities of the ship before a jettison, do therefore not contribute, because they were not exposed at the time of the jettison to a community of risk, and were not saved thereby." [COCKBURN, C.J. This is not a case of jettison; but both the French and Russian codes say that in case of jettison the captain shall exercise his discretion and throw over the least valuable goods first. This is the converse of that; but the same principle may well apply that the saving of the least valuable should be postponed to the more valuable; and it seems but reasonable that the owner of the least valuable, whose goods are not saved, should be able to claim contribution from the owner of the goods that are saved.] Emerigon on Insurance, ch. 12, ss. 41, 42, seems to lay down the law directly contrary to the principle enunciated in this judgment. It is said, s. 41 (p. 473 of Meredith's translation) :-" Enumeration of General and Particular Averages." "Damages happening to the merchandize through shipwreck are particular averages for account of the owners. The owner of the shipwrecked vessel, and the owners of goods lost in the shipwreck, cannot claim contribution from those who have had the good fortune to save (1) 2 B. & C. at p. 811. their effects; because the loss that both has suffered has not procured the common safety: Amissæ navis damnum, collationis consortio non sarcitur per eos, qui merces suas naufragio liberaverunt; nam hujus æquitatem tunc admitti placuit, cum jactûs remedio, cæteris in communi periculo, salvâ navi consultum est. It is the same with this case as with a fire; he who saves his own saves it for himself: Cum depressa navis, aut dejecta esset, quod quisque ex eâ suum servasset, sibi servare respondit, tanquam ex incendio. 'After the shipwreck,' says Cleirac, 'there is no contribution to be made between the merchandize recovered and fished out of the water, and that lost; but sauve qui peut.' 'Chi salva,' says Casaregis, 'salva; chi perde, perde.' The doctors treat the question whether in such a case I ought to save the thing deposited with me rather than my own. It seems that it is not blameable to think first of oneself; prima charitas sibi. There is nothing to prevent an agreement in the beginning, that in case of shipwreck all that is saved shall be common to the vessel and cargo. It is the case of germinamento, mentioned supra." The universal law, therefore, is, that you can only be called upon to contribute to those expenses from which you derive benefit. [COCKBURN, C.J. It might well be argued that the saving of the gold was an independent matter, and the gold had nothing in the world to do with the subsequent operations; but here a judgment of a competent court has condemned the gold to pay a certain amount, and the owner has no alternative but to pay in order to get his gold back. Is not that a loss by reason of the wreck of the ship? LUSH, J. If this were an action for contribution, all the authorities may be conceded to be on the side of the defendant.] Are the underwriters then liable, under an English policy, for something which is not general average according to the law of England, because it is determined to be general average by a court of the country to which the ship is going? This question naturally subdivides itself into two questions, whether they are liable by the mere decision of the court, or whether only if the court has decided according to law. In the first place, it is common practice to insert in policies a clause that the underwriters undertake "to pay general average according to foreign statement" which is VOL. IV. 2 P 1 1869 DENT v. SMITH. consistent with the case of Newman v. Cazalet (1); and this tends to shew that, without such a clause, the underwriters cannot be liable for any general average but what is so by the English law; and Power v. Whitmore (2), shews that the decision of the foreign court is not sufficient without evidence that on the facts there was general average according to the law of the country. [HAYES, J. What in foreign law is a question of fact must be proved like all other facts.] Mr. Phillips' edition of Stevens and Benecke on Average has been cited by the other side; there are, however, passages in it strongly in favour of the defendant; thus at pp. 272-3: "On the other hand it cannot be denied that in many places statements of general average are made, not only by individuals, but even by persons authorized for that purpose, and by tribunals of commerce, which are in direct opposition not only to the general principles, but even the very laws of the country where they are made; and the parties too easily acquiesce in such adjustments when the loss arising from them falls not upon themselves but upon their underwriters. The proper way, therefore, to do justice to all parties, seems to be to admit such foreign statements of general average only to which the assured was obliged to submit, and which are made according to the well-known laws and established usages of the place of discharge; and if any mistake has occurred to the injury of the assured, which he might and ought to have opposed, to correct the statement according to the law of the place of discharge. All adjustments of general average made at an intermediate place will thus be entirely excluded." This is entirely in accordance with Power v. Whitmore. (2) The summing up of Mr. Phillips at p. 279, cited by the other side, amounts to no more than what the defendant contends for, that to bind the underwriters it must be shewn that the judgment is itself in accordance with the law of the country. Power v. Whitmore was recognized by Lord Tenterden in Simonds v. White. (3) Phillips on Insurance, §§ 1414, 1415, and 2 Parsons on Marine Insurance, pp. 360-366, are to the same effect, that the underwriters are only liable to reimburse for general average shewn to be in conformity to the law of the place to which (2) 4 M. & S. 141. (1) Park Ins. 900, 8th ed. (3) 2 B. & C. at p. 810. the jurisdiction of the adjustment belongs. In 2 Arnould on them out. [COCKBURN, C.J. Article 812 of the Russian code seems nearly identical with Article 411 of the French code, as to jettison; that the things of most weight and least value are to be thrown over first (1); but there appears to be nothing in either code applicable to this particular case; it seems, however, that the persons who drew up this judgment treat it as a case of salvage, not of general average; and when the witnesses say that the French and Russian codes agree, they mean as to the way in which property shall be sacrificed, the least valuable in preference to the more valuable. I have been informed, however, by competent authority, that the Russian code is amended and supplemented from time to time. The law may, therefore, have been altered within the last few years. (2)] But there is no authority for the experts' doctrine of this kind of "necessary or natural general partnership," which is certainly repudiated by Emerigon. [COCKBURN, C.J. I certainly can find no authority for that.] The cases already cited shew that what the foreign law is must be clearly proved; in addition to which may be cited Trimbey v. Vignier. (3) (1) See 2 L. Levi's Commercial Law, pp. 149, 151, 154. from Saint Joseph's Concordance entre (2) The Chief Justice was using Leoni Levi's Commercial Law, published in 1852; and Sir G. Honyman was citing 2 P 2 (3) 1 Bing. N. C. 151. 1 1869 DENT V. SMITH. |