No. 87.- Dickenson v. Jardine, L. R. 3 C. P. 643, 644. the whole value of the goods against the underwriters, the other for a contribution in case the vessel arrives safely in port; and he may avail himself of which he pleases, though he cannot retain the proceeds of both, so as to be repaid the value of his loss twice over. This is the usual case where there is an insurance, and a loss following therefrom, within its terms, which would be total but for the liability of a third person. It has been so settled since the case of Randal v. Cockran, 1 Ves. Sen. 98; in that case a vessel had been taken by the Spaniards, and the underwriters had paid as for a total loss. Reprisals having been made, the commissioners who were appointed to indemnify those who had sustained losses refused to entertain a claim made by the underwriters; but the assured having obtained from them a contribution over again towards their loss, the underwriters filed a bill, and it was held, not that the loss was not total, but that the underwriters having in demnified the assured, whatever the assured received from [* 644] the * commissioners must be held by them as trustees for the underwriters. If the assured proceeds against the underwriters in the first instance, the latter cannot avail themselves by way of plea of the fact that the assured has a distinct right against some other person. They must pay the amount claimed in the first instance, and will then be entitled to use the name of the assured, and proceed against the other parties who are liable, as explained by Lord WENSLEYDALE in Quebec Fire Insurance Company v. St. Louis, 7 Moo. P. C. 286, 316. Questions of this kind have arisen in many forms, and always have been decided the same way; thus, in Yates v. Whyte, 4 Bing. N. C. 272, the defendant, who was liable for a loss that had been paid by the underwriters, insisted that the underwriters having already indemnified the plaintiff the claim against him was satisfied, but the plaintiff was held entitled to recover for the benefit of the underwriters. With respect to the alleged custom, it was not proved, the evidence at most showing only a practice adopted in undisputed cases; and, moreover, the loss being one springing directly from the contract of insurance, could not be affected by such a usage if proved. MONTAGUE SMITH, J.-I am of the same opinion. I think the goods jettisoned were totally lost to the assured within the terms of the policy, and that the underwriters are therefore liable to pay for the value of the goods. It is said that the loss is not total, because there are other parties who are bound to contribute to the No. 87. — Dickenson v. Jardine, L. R. 3 C. P. 644. — Notes. loss, and the plaintiffs are therefore already partially indemnified. That in one sense is so, but the assured have made a contract with the underwriters that they shall be paid the sum insured in certain events which have happened, and they are entitled to look to that contract for their indemnification independently of their other rights. Both upon principles of law and the weight of authority, we have a right to treat this as a total loss. Judgment for the plaintiffs. AMERICAN NOTES. This doctrine is approved in 2 Parsons on Marine Insurance, p. 289 et seq. : "The insured may claim of the insurers the whole amount of his loss, transferring to them his claim for contribution." Sustained by Maggrath v. Church, 1 Caines (N. Y.), 196; 2 Am. Dec. 173; Faulkner v. Augusta Ins. Co., 2 McMullan Law (So. Car.), 158; 39 Am. Dec. 119; Watson v. Mar. Ins. Co., 7 Johnson (N. Y.), 57; Amory v. Jones, 6 Massachusetts, 318; Forbes v. Manuf. Ins. Co., 1 Gray (Mass.), 371; Lord v. Neptune Ins. Co., 10 ibid. 109; Potter v. Prov. W. Ins. Co., 4 Mason (U. S. Circ. Ct.), 298; Greely v. Tremont Ins. Co., 9 Cushing (Mass.), 415; Hanse v. N. O. M. & F. Ins. Co., 10 Louisiana, 1; 29 Am. Dec. 456; which cases hold that the insured may recover the whole loss from the insurer in the first instance, without first demanding contribution from the other shippers, leaving the insurer to enforce the claim for contribution. (The contrary however is asserted in Pennsylvania: Lapsley v. U. S. Ins. Co., 4 Binney, 502.) SHAW, Ch. J., says in the Greely case cited above: "The underwriter is liable directly to the assured for a loss, in its nature a general average loss; that is, resulting from a voluntary sacrifice or its necessary incidental consequences, without waiting to collect contributory shares from other persons, unless indeed the same person be owner of both vessel and cargo." KENT, Ch. J., said in the Watson case above cited: The plaintiff "is entitled, even if a case for contribution existed, to recover the whole of it, in the first instance, of the insurer upon the ship, and to leave it to him to call upon the owners or insurers of the cargo and freight for their contributory shares." (Citing the Maggrath case, supra, and Vandenheurel v. United Ins. Co., 1 Johnson (N. Y.), 412.) "A settled rule," and "Pothier recognizes it as an established doctrine." In the Pennsylvania case (which was one of jettison) the Court said: "It seems reasonable that he who is entitled to receive the contribution should in the first instance apply for it. . . . If indemnification for their loss is their object, what is the difference whether they receive it from the defendants or other persons? I can find no satisfactory answer to this question but by supposing that bare indemnification will not satisfy the plaintiffs. Their object must be to make gain by abandoning to the defendants, and thus producing a constructive loss," &c. The Court distinguish the Amory case and disapprove the Maggrath case, and conclude: "There should be a demand made from the persons bound to contribute, and some reasonable endeavor to procure payment, and the insured has not a right in the first instance to make an election whereby a loss partial in its nature is by construction rendered total." (Two Judges dissented.) The Massachusetts, New York, and Pennsylvania cases are considered in the South Carolina case cited above, and the doctrine of the two former preferred. The Court observe: "The Court does not perceive how the insured can be suspended in their right of action by the mere qualified obligation first to demand contribution of the other shippers. This is often done from selfinterest or justice to the insurers. But in many instances the obligation to do so might be inconvenient - perplex with suits and impede the very object aimed at by the policy of insurance - immediate reimbursement of the insured in the value of the goods lost, in order that the voyage might not be retarded, or its fruits lost, which would be contrary to the general end of insurance, to extend commerce and advance its success. And these are to be answered by the immediate reimbursement promised by the insurers. I would therefore think that the adjustment of average loss among the different shippers, and the average bond, are to be considered as a counter-indemnity to the insurers after paying the whole loss." This doctrine is applied in the case of a loss occasioned by a wrong-doer. Newcomb v. Cincinnati Ins. Co., 22 Ohio State, 382; 10 Am. Rep. 746. As by collision 1 Parsons on Marine Insurance, p. 551; The Planter, 2 Woods (U. S. Circ. Ct.), 490; and the insurer is subrogated to the rights of an insured mortgagee: Parsons on Marine Insurance, 228; and so as to a claim against a carrier for negligence: Insurance Co. v. The C. D., Jr., 1 Woods (U. S. Circ. Ct.), 72; Sun M. Ins. Co. v. Miss. Valley T. Co., 17 Federal Reporter, 919. To estimate the loss upon an open policy on goods, the rule is to take as the basis of calculation (prime cost usually represented by) the invoice price at the loading port, together with the premium of insurance (expenses of loading) and commission. But where part of the goods are only damaged, the loss is calculated in the first instance by taking the difference between the selling price of the sound and damaged goods at the port of delivery, and then applying this difference proportionally to the standard basis calculated as above mentioned. No. 88. Usher v. Noble, 12 East, 639, 640. Usher v. Noble. 12 East, 639-648 (11 R. R. 505). Insurance. Open Policy.- Adjustment. The rule for estimating any loss of goods insured by an open policy [639] is to take the invoice price at the loading port, together with the premium of insurance and commission, as the basis of the calculation of the value of the goods; and the rule for estimating a partial loss in the like case is (the same as upon a valued policy) by taking the proportional difference between the selling price of the sound and that of the damaged part of the goods at the port of delivery, and applying that proportion (be it a half, a quarter, an eighth, &c.), with reference to such estimated value at the loading port, to the damaged portion of the goods. This was an action upon a policy of insurance subscribed by the defendant for £200 on goods on board the General Miranda, at and from Jamaica to London. In the declaration the loss was thus averred: that the ship, having the goods on board, was in the river Thames, and before the discharge of the goods at London, by the mere danger of the seas, and force and violence of the tide and winds, and the pressure of other ships, stranded and sunk, and the goods thereby totally lost. The declaration also contained the money counts. The defendant pleaded non assumpsit, and paid £14 into Court generally upon the whole declaration. And at the trial before Lord ELLENBOROUGH, Ch. J., at Guildhall, a verdict was found for the plaintiff for the damages laid in the declaration, subject to the opinion of the Court upon this case. (It being agreed that the amount of the damage should be settled by arbitration, if the Court should be of opinion that the plaintiff was entitled to recover anything beyond the sum paid into Court.) On the 4th October, 1807, the ship General Miranda arrived from Jamaica with the plaintiff's goods insured on board in the river Thames, and anchored near the entrance into the West India docks. Shortly afterwards, and as soon as the necessary forms were complied with, the vessel left her anchorage in the river for the purpose of entering these docks, in order to unload her cargo there; but on her near approach, and when about to go through the dock gates, she was wrongfully refused admittance, and ordered back by the servants of the company, under whose direction* and manage- [* 640] ment these docks were placed. Upon this she returned back to the river, and endeavoured to regain a place of safety there; but this was found impracticable; and the best thing that could be done was to moor her to a chain near the entrance to the docks, at which several other vessels that had returned from such entrance had previously moored. This was accordingly done, and the General Miranda, being the vessel nearest the shore, was at the falling of the tide forced by the violence of the current and pressure of the other ships upon a shoal or bank of the river, and was there bilged and stranded; and, in consequence, a part of the plaintiff's goods, consisting of coffee, was greatly damaged. In consequence of this the plaintiff brought an action against the West India dock company, and recovered a verdict against them. for the amount of the loss, estimated according to the market price of coffee in London at the time when the loss took place, but which was less than the prime cost of the coffee at Jamaica. The defendant obtained a Judge's order for liberty to inspect and take copies of the statement of the loss, and the following was delivered as such copy: Statement of average per General Miranda, Orr. Amount of goods per invoice No. 1 & 2, and bills of lading £ s. d. 6326 0 1 1265 4 6 7591 4 7 Deduct Amount of sound coffee and wood per invoice No. 5 and landing account No. 6 & 7. 2570 3 2 Insurance on £3085 to cover, as under, £2740 at 15 gs. per cent 345. Policy for £3085 Carried over 413 11 0 |