Court of Queen's Bench.

(From the London Shipping and Mercantile Gazette, July 10, [1847].)

Before Lord Chief Justice Denman, and Justices Patteson, Wightman, and Erle.

The Seahorse - Boyd v. The Royal Exchange Insurance Company.

The argument in this case, which had been heard in part in last term, was concluded on the 25th of May, and on Wednesday last Lord Denman delivered judgment.

The plaintiff had brought an action against the defendants upon a time policy, by which a vessel called the Seahorse, trading between Launceston in Van Diemen's Land and Sydney in New South Wales, was insured for the sum of �11,250, and her machinery for the same amount, from the 28th February to the 27th of August, 1843. The plaintiff claimed as for a total loss. The defendants paid into court 25 per cent. of the value, and pleaded that, as to the residue, they had not broken their covenant. At the trial the jury found a verdict for the defendants ; but a rule nisi for a new trial had since been granted, on the motion of Mr. Serjeant Shee, upon the three following grounds:- the improper rejection of evidence, the misdirection of the learned Lord Chief Justice, and that the verdict was against the evidence.

On the 25th of May, Sir F. Thesiger (with whom was Mr. J. Wilde) showed cause against the rule. On the 5th June, 1843, the Seahorse being on her voyage from Launceston to Sydney, was at Georgetown, at the mouth of the river Tamar, and shortly after weighing anchor she was carried by the ebb tide upon the shore. She was considered stranded by that accident ; but, it being fair weather at the time, the vessel got off without any assistance ; and, after some temporary repairs, sailed for Sydney, where she arrived on the 13th June. A protest was then noted (which was not extended for a fortnight afterwards), and a survey was made, when it was determined to abandon the vessel, and such intention was communicated by letter to the underwriters. That survey was not attended either by the captain or the mate, or the ship's carpenter, and notice of abandonment was given twelve days before the protest was extended. The vessel had continued in the possession of the plaintiff up to the present time ; and, so far was it from being a total loss, that the plaintiff had since given a champagne party on board. No means had been taken to ascertain the nature of the injury which the vessel had received, but the plaintiff came and claimed for a. total loss ; and the jury, having heard the evidence of the plaintiff for two days, gave their verdict for the defendants, that it was not a total loss. His learned friend sought to set aside that verdict on three grounds:- First, he had contended that evidence was improperly rejected when the answers to the tenth and eleventh interrogatories were not admitted. But he (Sir F. Thesiger) contended that those answers were objectionable, inasmuch as they were mixed of law, fact, and opinion ; and that depending not upon any matter of science, but upon a variety of circumstances, all of which should be laid before the jury. In a case of constructive total loss, like the present, the question was, what a prudent owner, uninsured, would do under the circumstances. All those circumstances should be put before the jury; but the witnesses were asked their opinion as to the expediency of repairing the vessel in the state in which it then was ; that was the very question in the cause which the jury had to decide. It was not a question of science, but of fact, and depended on the practicability of making the repairs, and a comparison of the expense with the value of the ship afterwards. If the facts were laid before the jury, they could decide for themselves. In the case of "Campbell v. Rickards," 5 B. and A. p. 30, the correct rule had been laid down by this Court. The learned counsel then distinguished that case from several others which appeared contradictory. He next contended that there had been no misdirection. The learned Chief Justice told the jury that if they were satisfied that the vessel was abandoned because it could not be repaired without incurring an expense greater than the value of the ship, and that the plaintiff had neglected no means of ascertaining the true state of things, they must find for the plaintiff.

Mr J. Wilde, on the same side, said that the opinion of a witness was admissible on a question of science which the jury could not be supposed to understand ; but when the jury had the same power as the witness of drawing a conclusion from facts, the opinion of a witness was not admissible. It was admissible only on a pure question of abstract science, and not where a question of science was mixed with fact or law.

Mr. Serjeant Shee (with whom were Mr. Crompton and Mr. Cleasby), in reply, said the question in the cause was, whether or not there had been a total loss. That was not a simple question of fact, but of construction, of opinion, of inference, of legal inference, of which the jury could have no knowledge at all. The question of total loss was not a naked fact, but was a question of science. It would depend upon whether or not the vessel could be repaired in that place for a sum less than its value afterwards, and nobody but a scientific person could have any proper knowledge upon that subject.

Mr. Justice Patteson: But if the witnesses were to tell the jury all the facts upon which they founded their opinion, the jury would be able to form their own upon those facts.

Mr. Serjeant Shee then contended, that the jury might have been misled by the word " abandonment," which in fact meant no more than writing a letter, which every consideration of honour bound the plaintiff to do as soon as possible, in order that the defendants might make inquiry. The very moment the ship arrived at Sydney a survey was had by the very men whom the assurers would wish to have been present. Those persons were called in by the owner, who believed his ship to be hogged or broken-backed. He submitted that the learned Chief Justice should have left it to the jury to say whether the plaintiff had acted prudently at the particular time, on the day after the survey ; not with the knowledge which was now obtained, but with the knowledge which the plaintiff possessed at that time, The learned serjeant then contended that the verdict was against the evidence.

Mr. Crompton, on the same side,. contended that the jury were manifestly influenced by what the judge had said in summing up (taking an impression from Sir F. Thesiger), as to the duty of not '� abandoning" with precipitation. Sir F. Thesiger now stated that he put the matter as an indication of fraud, as much as to say, will you trust a person who could so act when you find no bona fides. But he (Mr. Crompon) averred, on the authority of the short-hand writer, that the learned counsel put it as a matter which precluded recovery.

Mr. Justice Erle ; It was more like remarking on the nature. of evidence than laying down the law.

Mr. Crompton : It was certainly put as a distinct proposition in the cause, that unless a party abandon he cannot recover. His lordship put the thing as the conduct of a prudent man. " Would a prudent man have abandoned under the circumstances " he did abandon? The jury, therefore, evidently came to the conclusion that he was not a prudent man. If, as Sir F. Thesiger now allows, abandonment is of no effect in the cause, why was it pressed ? Why put it again and again? Why did his lordship dwell on it ? The fallacy was that this was mixed up with the plaintiff, and the jury could not have understood that the point whether the plaintiff had acted as a prudent man or not was an essential in the case.

Mr. Justice Patteson: You don't deny, I presume, that the plaintiff was bound to take proper steps to ascertain the damage ?

Mr. Crompton: I don't assent to that, my lord. It might be a subject for remark, but is no essential portion of the question. It was not the testing point of law; it was not that which should have influenced a decision.

Mr. Justice Patteson: The onus of proving that the Seahorse could not be repaired lay upon you ; and in looking to that, the manner of ascertaining the damage and the abandonment, were merely elements.

Mr. Crompton: It was put by Sir F. Thesiger, that the plaintiff could not abandon, without first ascertaining; and then the learned Judge said - " If you think he was justified in abandoning." And, again, - " If he did not take proper steps to ascertain the extent of the damage, then there was no right to abandon."

Mr. Cleasby followed on the same side, and submitted that a new trial ought to be granted.

The Court said they would take time to consider their decision.

On Wednesday last, July 7, Lord Denman delivered judgment as follows :

This was a claim as for a constructive total loss. The jury who found for the defendant were supposed to have been misdirected by having their attention so confined to the question, whether the assurer's conduct had been that of a prudent owner uninsured ; that the verdict, if given in conformity with that direction, must have been for defendant, if any degree of imprudence could be justly imputed to the owners, even though they should be of opinion that there had been a total loss. The plaintiffs urged that I adopted too indiscriminately the Lord Chief Baron's opinion in a recent case, and left this question of what the prudent uninsured owner would do a completely independent question, which answered one way, would of itself constitute a defence. And, indeed, if that were so, all inquiry into the fact would be immaterial. We thought it necessary to obtain the fullest report of the trial, in order to see in what manner the law was stated to the jury. It was urged the summing up referred also to what had been laid down to the same effect by defendant's counsel, but neither can be properly understood without the original statement of the law by the plaintiff's counsel on which the observations were made. We then discover what the parties agreed to discuss and what to reject as superfluous, or what they laid aside as too clear to be brought into controversy. On looking over my brother Shee's opening speech for the plaintiff, we find a very full and clear statement of the facts which attended the loss. It occurred on the 5th of June, 1843 ; the ship underwent examination on the 15^th ; plaintiff wrote on the 18th to the underwriters his abandonment of the vessel as for a total loss. The word here has not its ordinary meaning, nor does the use of it produce any effect on the rights of the parties ; it was treated on all hands as equivalent to plaintiff's declaration of the fact that a constructive total loss had taken place. Upon these facts the learned counsel proceeded to state his views of the law in these terms. To this statement the learned counsel for the defendant acceded, adopting his test of a prudent owner uninsured, but adding the qualification that such a person should take care - indeed that it was an obvious duty of the prudent uninsured owner to ascertain with all the accuracy which the state of things permitted, what was the real condition of the vessel before he treated it as a total loss. He supported this qualification by a recent decision of the Lord Chief Baron, and my summing up placed both those propositions before the jury as correct.

For the apprehension now expressed that the jury have been led to consider these two propositions as wholly distinct, and possibly to find a verdict for the defendant by way of punishment for the owner's want of prudence, even though they should have thought there was a constructive total loss, there does not appear to me to be the least foundation. It was indeed, in the present case. impossible. If an actual total loss had been proved, such a mistake might have crept in : but here the loss is constructive, and becomes so (according to the plaintiff) from the owner being deprived of all means for ascertaining the amount of injury sustained by the vessel. This he does not undertake to prove, because he says he had no power to discover it ; and the question is, whether proper use has been made of the means he possessed for making the discovery. The whole issue after all is narrowed to this, was the expense of doing the acts necessary for discovering the exact amount of damage and of repairing it when done, greater than the value of the vessel ? The very terms of this question show that it can never be answered with a full knowledge of the fact, and that the inquiry must be, what was the most rational opinion upon facts unknown ?

If the vessel could have been hove down, without this enormous expense, that operation ought undoubtedly to have been performed. But there were such great difficulties in providing the means for heaving down, that no man in his senses could have expected any benefit to arise from it. If the jury believed this, the plaintiff was right in deeming this a total loss. But if the jury should think that the expense, though heavy, would have been incurred by a prudent uninsured owner, in preference to treating his ship as incapable of being ever employed as a ship again, he ought to have taken the necessary measures to find out the fact, and was not justified in despairing of the possibility of her recovering. The conduct of the prudent uninsured owner is, therefore, identical with the constructive total loss, and there is no room for any other supposition ; and it seems, on examination, impossible that the summing up, which on this point is admitted in terms to be correct, should have led the jury to consider any point but the true one. It was not absolutely necessary, nor were the jury told that it was for the plaintiff to abstain from giving notice of abandonment until he had ascertained the precise actual state of the vessel. He was at liberty to give such notice (which, however, was not essential, to enable him to recover for a total loss) before he had taken all such measures as were possible to be taken without ruinous expense for ascertaining that state, and if he had taken. those possible measures at any time before the trial of the cause, and had proved by them that the damage was such as could not be repaired without ruinous expense, he would have shown that he had done all that a prudent uninsured owner would have done, and the jury were in no way led by the summing up to suppose that any delay in taking these measures, if proved to have been taken at all, would destroy the plaintiff's right to recover as for a total loss. We may observe in general terms that the question, what a prudent owner uninsured would do, can hardly be treated as a rule of law. It is a convenient test by which a jury may come to a reasonable conclusion in the particular case, and when resorted as such by both parties in the argument may surely be adopted by the Judge. Objection was taken to the question which was submitted to witnesses, and to the answers following upon it. They were required to state anything in addition to what they had already stated which could be favourable to the plaintiff. The answer was excluded as possibly founded on considerations wholly foreign to the facts of the case. On reading the report, I perceive that, wherever the witness himself drew the correct distinction, and deposed to facts within his own knowledge, I admitted the answer ; but the plaintiff could hardly have maintained with seriousness that he could be entitled to draw more from the witness by a question like that now under consideration. Another question appeared at first to involve the important doctrine which has been much debated, respecting the admission of opinions of skilful persons on the facts proved. Such persons were asked what they thought the proper course for the plaintiff to pursue after the ship's arrival at Sydney with regard to the abandonment of the ship, or the attempting to repair her. The first objection was, that no certain state of things is supposed by the question, and the answer to it might be given on an hypothesis which the jury did not believe to be true. Perhaps this objection, good as a general proposition, might not exist in this case with regard to those witnesses who had already given their own description of the state of the vessel. But there was another objection. The opinion was asked as to no matter of skill, but as to a matter of prudence in plaintiff's conduct, after the accident. It was not like asking a pilot which way he would have turned the helm under certain circumstances, nor a shipwright in what way the damage could have been best repaired, but how a prudent man would have acted in regard to the interest of owners and underwriters ? The question might as well have been put, whether it was wise to bring the action or to defend it, or what, under all the circumstances, the Judge's summing up or the jury's verdict ought to be. Lastly, the verdict was impugned, as being against the evidence which was sought to be partially explained by a mistake in the construction of the logbook. An entry in it was said to have been misread at the trial, making the voyage from the place of the accident to Sydney appear to be some hours shorter than it was. Defendant's counsel relied on this fact as proof' that the vessel had not sustained so much injury as plaintiff represented. But this mistake, in whatever degree it may have operated, does not appear to afford any sufficient ground for setting aside the verdict, the plaintiff's learned counsel in opening his case, insisted on the length of the voyage, as a proof of the extent of injury, and ought surely to have been prepared with his explanation of the contrary, appearance in his own logbook. But even if it had been explained, there were facts in the case, partly in the evidence, and partly in the discussions that took place in the hearing of the jury, respecting the manner in which the commission was executed, which could not fail to make a strong impression on their minds. If the mistake had been rectified, and the verdict still the same, I cannot say that I should have thought it erroneous.

Rule discharged in all the points.

SG & SGTL ; Vol 4 ; Page 285-7.

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