The Express.
London, England, 1863-12-23 00:00:00

tab; *nttiligente.

COURT OF QUZEN'B BENCH.—DNA:. 22.
juktr Term whop at Nisi Prior at GaildhalL (Mara
Lard Chief Justice Ocsakbars sod a Special Jury.)

'MAAS. dIIDOTHERS O. LE,ITHLPY.

This win the eighth and lest Jay of tLis protracted in-
quiry. 11 was an adios oe • 131111i110 time policy of inter-
a.i
fore lead lost. The defendant, with about 100 other
underwriters, had underwritten the policy to the extent of
on:,/, bat it had been arranged bete, en the other port
owner, with the present plaintiffs and the other under-
wr.ters that this action should be tried, and its result be
binding Jri all parties. The dideodaut Ltd ;aid into court
tau gums., being at the late of sereu per cent on the
ac:ount :underwritten by him, and denied Lis liability to
si.:y further sum, on the ground that it ass tot a total loss.
This was a second trial. The first trial, which bated five
days, resulted in a verdict for the plaintiff, upon which a
rule was obtained on behalf of the defendant for a new
Vial, on the ground that the verdict was against evidence.
The rule was accordingly argued and made absolute for •
new trial, and the consequence has been, as is invariably the
ease iu second trials, from each side being exactly aware
beforehand of emery minute point to be relied on, and
stations to meet them with as mach evidence &wit
a longer period occupied in the inveiticition.
COMalea Ad with the consent of both parties with slaves
special -.:rytoen, but the little episode of Monday further
reduced the number to 10, by whom the matter had to be
decided.

The plaintiffs were part owners of a steamer of 600 tuna
bonbon, called the Harbinger, valued at !3,3001.. sod the
machinery 4.000/., making • total of 17,r401. She was
ksured to the amount of 15,000/. on • time policy for •
year. The plaintiffs had inured their part for 3.950/., of
which the defendant had underwritten 150;. No fraud was
imputed.
This morning the leaned Solicitor-General resumed his
reply, which occupied up till the middle of the day.
The Lord Chief Antics, who wee suffering from severe
indisposition, eke referring to the importance of the case
in a commerCial point of view, mid the question for the jury
was whether, under the cutunistatioss *hilt had been
brought under their attention and consideration, the master
of a merchant vessel might, withoutmaking anyeffort to eve
the ship and bring her home—without communicating with
the underwriters, and in the Owen of imminent peed to the
ship, abandon her and sell her under aircumetauces which
amounted to a total and absolute motif ce of valuable pro-
perty. The plaintiffs claimed in respect of • total loos of the
*hi,. When she wee abandoned she was to all intents and
purposes &ship, neither having run ashore, became a wreck,
so: sunk in the ocean. The policy.holders could not,
ender such circumstances, claim for • constructive total loss
except uoder two conditious— one, the vessel being noses-
worthy ; the other. needing repairs is • place where it was
impossible to repair her, or where the expense of effecting
such repairs would have been so heavy as that they
would have been co-extensive with. or exceeded
the value of the ship when repaired, so as to be an idle
waste of money if expended, for no Mee was boned to
throw good money after bad. If, therefore, policy-holders
could satisfy • jury that they could not have repaired a
vessel to make her fit for ses except at an expose, dines
portionte to her value, they womanlike] to recover for a
constructive total loss. The plaintiffs in this nos maid they
hat DO alternative than to do what they bad does. They
did not say th, y could not repair the ship on account of the
cost. but that looking to the natured the injuries, and to
the condition of the venal, and the place when she was,
the repairs were physically loveable. If they made that
out to the satisfactioo of the jury, the next point for their
consideration was whether the defective °audition of
the ship arose from any of the perils lamed
against, end then they would have to determine whether
the abandonment of the ship was justifiable or sot, axed
further, that if justifiable the sale was of each urgent
necessity. They started with the fact of a vessel valued
by her owners, including her machinery. at 18,0001., not
cast away upon a togged, barna, inhospitable cent, but in
the bay of • British settlement, where human help was not
so far off as not to be within reach, sacrificed, as regarded
her hull, for 2001. II was a circumstance that called for
=pinnies, and it was for the jury to may whether the air-
eusistsons that had been brought to their notice, and the
explantion that had been given in respect to it, wee nth,-
factory to their minds. But °ninety it was a ciroutoirtaine
that celled for vigilant sod rigid inquiry. On the other
band, they started with a very satisfactory facet. It could
not he suggested, nor had it been suggested in the costa of
the case, that what had been done, whether they coridered
it rightly or wrongly dome, had been does from any
sinister orf oorngt motives. The owners were certainly not
ever-iosured ; en fact, they knew the principal owner was
considerably under-insured, and that he wanted hie vassal
home, a f-ct that ern well 'mown to the captain. It (add
not therefore be suggested that the captain had with say
sinister or criminal motive fraudulently or wantonly
abandooed the vesseL AU that could be said on that point
had been urged by the learned counsel for the defindast,
viz., that the captain was not actuated by thosebigh noting
which generally prevailed with menhant captains ender
similar circumstances. Be thought that was all it came to,
and he should have deedy regretted if asythieg bed
been said in the coarse el the trial which in any way in-
fected on the conduct of the captain as having beam want-
ing in honesty of purpose, gad in desire to do his duty to his
employers. However, when they came to inquire lino the
question if the captain bad sunned • sound as well as an
honest judgment in the matter, ft might not be ones tact
to see whether he bad shrank forma meeting the difibaltise
of his position, and had 'hoes timidity, mid had displayed •
want of that courage, hamminationt and piney/geese
swhiCh distiarlithed the of oar merchant
Tokio, 'Without hepatitis dinac, • o tame
f duty, go far as
honesty of purpose was concerned, they had to tow
eider if the captain had done all that a high
sense of duty ought to have matted of bitn,
His lordship then went minutely through the numerous de-
tails of the case beating on the various points in dispute. and
artfully contracting the evidence given on both aides. Paw-
ing from the question of seaworthiness and the condition of
the plates end rivets his lorddepeame to the important
quieten eltherkeseith. With tepid to the heaving down
the ship is Atmellty, It the end it could not be done with-
out great aniero Lied the ship. Bat why talk of risk
and damper, whims. the IWO bead there was the energies of
the Veleil, and es the ether the einem of =via( bee? Ought
it, therefore, sells lave be.. tried and risked In answer
to that it wee sad the ship would lave bees is pail, sad
all the expert end koalas mint ban both imr
said he
came the ship
tabo hem beim lad. The plaintiff farther
wasrendred, sad eentai bee to have bees Inked
to risk 2,0101. er mere hi heavier dowo the vessel (erehe
mere risk and game of auger sad failure. There th •
great deal in that obiectioe, bet thee it might be met en
the other side by saying what right had the miptein to
swam the mead without giving the elder-
writers the optics of trying the experimeth
And the einsinty of a notice of constructive tete' loss
to the ieNtelf. was to enable him to exercise his heathy,
and try whether be oeuld sot accomplish what the finer
could set dig and so bring the vessel horns.
they should be of opinion that the berms downtoPint
have ben aecomplished, was the captain justified in saying
nothing further could be done? It was suggested by the
defeedanta, that the ship might have been take, to itymon's
Bay, and there repaired, and afterwards brought hone ; but
it was for them to say whether the evidence inhaled them
that elle was suflicieutly seaworthy to go to Smote, Bay,
sod that, when she got there, she might have been repaired.
It was certainly • difficulty In the ease that it was not at-
tempted ; but, admitting there was danger in doing so, was
there no alternative but abandoemeot, and in so doing had
the captain feted like c pendant mac because lie. Lindsay
upheld Lim in all he had dons - He could not, however
imagine, if Mr. Lindsay had bonen the spot. that he would
bays seerifieed this ship is the way she had beau, without
an effort I. save her, for without more perseveraisee is him
then that, he never would have occupied hie high posigigo
in the City of Tondos. The master, however had acted
without advice from any one, end ander the cirCusestemess,
was there that imminent peril that rendered It
teoesmryj fee him to ad in such • hurry and abandon
nod sell her without first communicating with
the underwriters ? After aiendoonmet coma the question
of sale, and under an abandonment a captain bed a Aglaia
sell for the benefit of the underwrites ; but thee it most be
wider two coodition—trot, Inability to proceed en the
voyage, and secondly, that it was to their interest the ship
should be forthwith dispersed of to prevent further damage
and lose to them. they writers at entinsuce had doubted
the soundness d absadosamet, but as it was • part of our
commercial law all parties must be booed by it. A monies
under snob eireuseetesten the bound to act not oe/y hoer*
tat on noted judgroestouch as might be fairly arrived at by •
man 'neither with what he bad to deal with. Supposing,
however, the plaintiff had made out his ass an tie ques-
tions of seaworthiness and abandonment, the ddere&ste
still irked for the verdict en the ground that the damage
did not arise from the perils inured *seine% but that the
state of the nvees sad plates, so far from ?,eirig sea damage,
was diniumithable by what was called weer and tear from
internal corrosion. 'the plaintiff, whose theory was unlade-
factory on that point, came into court with two strings to
his bow : first, that the damage was occasioned by floating
wreck—but on that point it was said by some of the
witnesses the hole was too low down • and secondly,
tin .training of the ship. The theory en the
other Laid was that the damage ores no. the effect of the
sea awl external mitten, but the rise of the sounding rod
sod the corrosion from weer and tear. I've those points
there was also • conflict of testimony. It should be borne
in mind that under writers inure against the casualties of
unlearns, and not the soceseary and usual Incidents at.
feeding the fair wear and tear of a vessel ; for inherent
decay they were not answerable. They had, therefore, to
solve the question whether the ship's ucesswortbizess
arose frogman damage asdistiagnished from fair wear and
test. It they were el opiaise this was a partial lea only,
and not • eosetreative total Ina had auffi;ient itheey bees
paid into mart to meet it, benne in naiad that Me Lindsay
claimed to be reimbursed the sum he expended I.
Alyce Bay, le which case the sum paid :Leo court was sot
aufflcient
_

The jury retired to ea:hider their ►erdiat, sod after as
absence el two hoots and three quarter., returned hate
„mi.. sad ...wired the separate questions left tothein, the
resull of which use s verdict for the defendant, en the
ground that a prudent owner uninsured would not have
abandoned the ►eeuh

The jary were thew seat bank to mese the &must of
dameare for a partial lob,. to enable the plaintiff to wees
the court shore to eater the verdict for bine far that
askoaaL Ldo soratine the parties weed to the td.