Imágenes de páginas

with the requirements of the law if the owner shall shall transfer his interest in such vessel and freight, trabsfer his interest in the vessel and freight to a trus- for the benefit of the claimants, to a trustee. Is in. tee for the benefit of the claimants. In most cases surance an interest in the vessel or freight insured, this cannot be done until the voyage is ended; for within the meaniug of the law? That is the precise until then the embezzlement, loss or destruction of question before us. property cannot be knowl. And this was manifestly It seems to us at first view that the learned justice the maritime law; for by that law the abandonment who decided the case below was right in holding that of the ship and freight (when not lost) was the rem- the word "interest" was intended to refer to the exedy of the owners to acquit themselves of liability, tent or amount of ownership which the party had in and of course this could only be done at the termina- the vessel, such as his aliquot share, if he was oply a tion of the voyage. If the ship was lost, and the voy- part owner, or his contingent interest, if that was the age never completed, the owners were freed from all character of his ownership. He might be absolute liability. Boulay-Paty, Droit Com. Mar., tit. 3, s$ 1, owner of the whole ship, or he might own but a small pp. 263, 275, et seq.; Emerig. Contrats à la Grosse, ch. fractional part of her, or he might have a temporary 4, sec. 11, $$ 1,2; Valin Com. liber 2, tit. 8, art. 2; or contingent ownership of some kind or to some exConsolato del Mare, chs. 34 (141), 186 (182), 227 (194), tent. Whatever the extent or character of his own239; 2 Pardessus' Collection; Cleirac Nav. de Riv- ership might be-that is to say, whatever his interest ières, art. 15.

in the ship might be—the amount or value of that inIf however by reason of the loss or sinking of the terest was to be the measure of his liability. This ship the voyage is never completed, but is broken up view is corroborated by reference to a rule of law and ended by causes over which the owners have no which we suppose to be perfectly well settled, namely, control, the value of the ship (if it has any value) at that the insurance which a person bas on property is the time of such breaking up and ending of the voy- not an interest in the property itself, but is a collatage must be taken as the measure of the owners' lia- eral contract, personal to the insured, guarantying bility. In most cases of this character po freight will him against logs of the property by fire or other specibe earned; but if any shall have been earned, it will fied casualty, but not conferring upon him any interbe added to the value of the ship in estimating the est in the property. That interest he has already by amount of the owners' liability. These consequences virtue of his ownership. If it were not for a rule of are so obvious that no attempt at argument can make publio policy against wagers, requiring insurance to be them any plainer.

for indemnity merely, he could just as well take out If this view is correct, it follows as a matter of insurance on another's property as on his own, and it course that any salvage operations, undertaken for the is manifest that this would give him no interest in the purpose of recovering from the bottom of the sea any property. A man's interest in property insured is so portion of the wreck, after the disastrous ending of distinct from the insurance that unless he has such an the voyage as above supposed, can have no effect on interest independent of the insurance his policy will the question of the liability of the owners. Their lia- be void. bility is fixed when the voyage is ended. The subse- This rule of the law manifests itself in varquent bistory of the wreck can only furnish evidence

ious ways.

If a mortgagor insures the propof its value at that point of time. And it makes no erty mortgaged, the mortgagee has no interest difference if this regard whether the salvage is ef- in the insurance. He may stipulate that the fected by the owners or by other persons. Having policy shall be assigned to him, and the mortgagor fixed the point of time at which the value is to be may agree to assigu it; and if it be assigued with the taken, the statute does the rest. It declares that the insurer's consent, the mortgagee will then have the liability of the owner shall in no case exceed the benefit of it; or if not assigned according to agreeamount or value of the interest of such owuer in such ment, the mortgagee may have relief in equity to obFessel, and her freight then pouding. If the vessel ar- tain the benefit of it. So where the property is sold rives in port in a damaged condition, and earns some the insurance does not follow it, but ceases to bave freight, the value at that time is the measure of lia- any value, unless the insurer consent to the transbility; if she goes to the bottom, and earns no freight, fer of the policy to the grantee of the property. the value at that time is the criterion. And the bene- In other words, the contract of insurance does not atft of the statute may be obtained either by abandon-tach itself to the thing insured, nor go with it when it ing the vessel to the creditors or persons ivjured, or by is transferred. It is hardly necessary to cite authori. having her appraisement made, and paying the money ties for a rule which has become so elementary. We iuto court, or giving a stipulation in lieu of it, and will only refer to a few of them: King, L. C., in Lynch keeping the vessel. This double remedy giveu by our y. Dalzell, 4 Brown Parl. Cas. 431; S. C., 2 Marsh. Ins. statute is a great convenience to all parties. It does 801; Lord Hardwicke in Sadlers v. Badcock, 2 Atk. not make two measures or standards of liability, for 554; Carroll v. Boston Marine Ins. Co., 8 Mass. 515; the measure is the game whichever course is adopted; Columbiu Ins. Co. v. Laurence, I0 Pet. 507, 512; Carbut it enables the owner to lay out money in recover- penter v. Providence Washington Ins. Co., 16 id. 495, ing and repairiug the ship without increasing the bur- 503; Ætna Ins. Co. v. Tyler, 16 Wend. 386, 397; Wilson den to which he is subjected.

v. Hill, 3 Meto. 68; Poules v. Innes, 11 Mees. & W, 13; It follows from this that the proper valuation of the McDonald v. Black's Adm'r, 20 Ohio St. 185; Plimpsteamer was taken in the court below, namely, the ton v. Insurance Co., 43 Vt. 497. Carroll v. Boston Ma. value which she had when she had sunk, and was ly

rine Ins. Co., Poules v. Innes and McDonald v. Black's ing at the bottom of the sea. That was the termind

Adm'r were cases of marine insurance, and the same

rule was followed in those cases as in cases of insurThe next question to be considered is whether the ance against fire. petitioners were bound to account for the insurance

It is not an irrelevant consideration in this regard money received by thenu for the loss of the steamer as

that the owner of the property is under no obligation a part of their interest in the same. The statute, sec

to have it insured. It is purely a matter of his owu tion 4283, declares that the liability of the owner shall option. And being so, it would seem to be only fair not exceed the amount or value of his interest in the and right, and a logical consequence, that if he chooses vessel and her freight; and section 4285 declares that to insure he should have the benefit of the insurance. it shall be a sufficient compliance with the law if he He does not take the price of insurance from the thing

tion of the voyage.

[ocr errors]

insured, but takes it out of the general mass of his es. and those who labored on its oonstruction or repair,
tate, to which his general creditors have a right to should have the power of transferring their lien on
look for the satisfaction of their claims. They are the the vessel to the insurance money received by the
creditors who have the best right to the insurance. owner for its loss. He reasons that this should be so

Stress is laid upon the hardship of the case. It is because the material men and the workmen helped to
said to be unjust that the ship-owner should be en- make the thing which forms the subject of the insur-
tirely indemnified for the loss of his vessel, and that ance; while he admits that the parlement of Bour-
the parties who have suffered loss from the collision deaux had decided otherwise as late as September,
by the fault of his employees should get nothing for ( 1758. So that the views expressed by Valin seem to
their indemnity. This mode of contrasting the con- be his opinion of what the law ought to be, rather
dition of the parties is fallacious. If the ship-owner than what it was. 1 Valin Com. 315, 316, liber 1, tit.
is indemnified against loss, it is because he has seen 12, art. 3.
fit to provide himself with insurance. The parties Emerigon strenuously opposes Valin's opinion. His
suffering loss from the collision could, if they chose, reasons are that liens are stricti juris, and are not to be
protect themselves in the same way. In fact they gen- extended by construction; that if Valin's rule is well
erally do so, and when they do, it becames a question founded, a vendor on credit would have a lien on the
between the insurers and the ship-owner whether price arising on a subsequent sale of the same thing by
they or he shall have the benefit of his insurance. His his vendee after the thing itself had ceased to exist,
insurers have to pay his loss. Why should not the in- which was contrary to repeated decisions; that by
surers of the other parties pay their loss? The (truth stronger reason, material-men and workmen have no
is that the whole question after all comes back to this: lien on the assurance of a ship which never belonged
whether a limited liability of ship-owners is consonant to them, for there is nothing essentially common be-
to public policy or not. Congress has declared that it tween the right of pledge aud that of property; that
is, and they, and not we, are the judges of that ques- the ordinance gives no privilege to the material-men

and workmen except on the ship, and therefore they
Having, as we think, ascertained the true construc- have none on the insurance, according to the rule of
tion of the statute, the point in dispute is readily set- strict construction already stated; that if the ship
tled. It is a question of construction, and does not re- were represented by the insurance it would be neceg-
quire an examination of the general maritime law to sary to give the same privilege to the seamen and all
determine it. If the rule of the maritime law is dif- other privileged creditors, which would destroy the
ferent, the statute must prevail. But from such ex- whole object of insurance, that on the same principle,
amination as we have been able to make, we think insurance ought to be represented by reinsurance,
that the weight of maritime authority is in accord with which it is well settled, cannot be done. Emerigon
the disposition of our statute as we have construed it, Cont. Grosse, ch. 12, $ 7.
and that the statute has adopted the maritime law on The opinion of Emerigon was followed with but lit.
this point as well as on the question of time for esti- tle dissent until a recent period. The most prominent
mating the value of the ship.

writer who disagreed with him wis Pardessus, who in The contract of insurance is of modern origin. It is the first edition of his Droit Commerciel, published in not mentioned in the early treatises or compilations of 1814 (art. 663), after stating the general rule that the maritime law. It is but little noticed prior to the owner may discharge himself from responsibility by sixteenth century. Ou a question like the present we abandouing the ship and freight, added: “If these paturally turn to the French writers, who are distin- things have been insured, he ought to abandon also guished for their great learning and acumen on mari- his rights against the insurers." The sentiment is retime subjects. The principal text law on which they peated as his personal opinion in the subsequent edi. rely prior to the Code of Commerce adopted in the tions of his work (same art. 663), but he is obliged to present century is the Ordinance de la Marine of 1681. concede that the law is otherwise. In the edition of By this ordivance it is declared that the owners of 1841 (art. 594, 2d), after asking the question whether & ships shall be responsible for the acts of the master; creditor, having a privilege or a hypothecation on a but they shall be discharged therefrom by abandon- thing insured, could require a distribution of the ining their vessel and freight. The Code of Commerce, Burance money as would be made of the price on a art. 216, has substantially the same provision. Be- sale, he says: “I think not; there is not the same reayond this general declaration (which is simply an an- son. In the case of sale the price must, in the nature nouncement of the maritime law on the subject), the of things, represent the thing sold, the owner parting special rules applicable to particular cases, and neces. with it only for that. In the case of insurance the sary for securing the benefit of the general rule in all, thing has perished; it has not been assigned in considhave to be drawn from the general principles of the eration of any price. The debtor has procured, it is same maritime law. Whether in abandoning the ship true, a guaranty, by the effect of which the insurer to the creditors, the owners are or are not obliged to pays him the value of it; but this guaranty is the reabandon the insurauce effected on the ship, is a ques. sult of an agreement independent of the engagements tion which had to be decided by the application of the of the assured with any particular creditors. The general principles referred to.

value paid does not represent the thing insured, exThe history of opinion among maritime writers on cept in the relations between the insurer and the inthis subject is briefly this:

sured; not in the relation between the latter and his Valin and Emerigon, two great French jurists, con- creditors, except as an accession to the mass of his temporaries and friends, wrote on the maritime law. property, against which the creditors may prosecute In 1760, Valin published his New Commentary on the their actions according to the principle of the civil law Ordinance of the Marine of 1681. In 1783, Emerigon by which all the property of a debtor is the common published bis Treatise on Assurances and Contracts of pledge of his creditors; but without any preference, Bottomry (Traité des Assurances et Coutrats à la none of them having a peculiar right to a privilege on Grosse). Emerigon furnished Valin a large portion of the contract of insurance wbich bas caused the amount the materials of which the latter's commentary was assured to be added to the assets of the common composed. Both of them are regarded as great au- debtor. It would be otherwise, undoubtedly, if the thorities on maritime law. These jurists differed on debtor in borrowing upon a hypothecation of a house the question we are considering. Valin thought that insured, should at the same time assign to his creditor those wbo furuished materials and supplies for a ship, the contingent benefits of the insurance, to serve for

[ocr errors]

his discharge to that extent, and if the creditor should commentary on the Code de Commerce. Dufour atduly notify the insurer," etc. This passage shows that tempted to renew the controversy, although he aderen Pardessus admitted the law to be as Emerigon | mitted that the views of Emerigon had been achad declared it.

quiesced in even by Pardessus, and that Valin stood Boulay-Paty, the contemporary of Pardessus, who alone, he says: “Doctrine and jurisprudence, after published his work on Maritime Commercial Law some hesitation, pronounced themselves, as is well (Droit Com. Mar.) in 1821, warmly espouses the views | known, against the existence of a privilege or hypotheof Emerigou. His observations on the subjeot are ex. cation on the indemnity due from the insurer; and in ceedingly sensible and persuasive. After 'quoting the that way the general principle which Emerigon bad views of Valin and Emerigon, he says: “We must adopted as the basis of his theory penetrated men's agree that Emerigon's opinion is most conformable to minds as an indisputable truth which ought thenceprinciple, and that the transfer or subrogation of forth to govern all indemnities of insurance. Thus it which Valiu speaks is not admissible,” that is the is for example, that M. Pardessus, speaking of this transfer of the lien from the property to the insurance. question in relation to maritime credits, comes back He adds: “The axiom subrogatum tenet locum subro- | for its solution to the general principles relating to ingati should be understood as applicable when the thing surance; so that the opinion of Valin seems to be has been changed into something else by the owner, crushed under this imposing unanimity.” Dufour who has received the other thing in its place; as in | Droit Maritime, art. 261. Dufour then devotes many the case when the owner of a ship has sold it, it is cer- pages to argue the question ab origine, persuading tain that the lien is transferred according to un- himself that he has established the correctness of doubted law to the price. But when the thing is per- | Valin's views. But his admission at the beginning of ished in the hands of the debtor, certainly all lien js / his argumeut demonstrates that the maritime jurisextinct. L 8 ff, quibus modis pignus vel hypotheca sol. prudence of France was in accordance with the opinvitur. Is it possible to suppose that an insurance, ion of Emerigon. In consequence probably of this which is an agreement foreign to the creditors hold- ) effort to bring the matter again into question, Bedaring liens, which has been effected between the owners ride examined the subject with great care, both on and a third party, can have the effect to bring again | principle and authority, and showed that the law was into life the lien on the ship?" Volume 1, p. 135. He not only settled, but should not be disturbed. Bedarride goes on to argue the question at great length, and with Droit Commercial, art. 295. But the advocates of much force; but it would extend this opinion too change persisted in their efforts, until finally on the much to quote bis argument at length. One more ex- 22d of December, 1874, on the passage of a law to rentract will suffice. After showing the difference be- der ships susceptible of hypothecation, they procured tween abandonment to the lien creditors and surren- a section to be inserted ($ 17) declaring that in case of dor to the insurers, and that the latter does not inter- loss or disablement of the ship, the rights of the credfere with or prevent the former, he says: “The pro.itors (that is hypothecation creditors) may be enforced duct of the insurance is the price of the premium | not only against the portions saved, or their proceeds, which the ship owner bas paid to insure the ship. but (in the order of registry) against the proceeds of This premium is not bound as a security for debts and any assurances that may have been effected by the obligations contracted by the captain; the law ex- borrower on the hypothecated ship. This law howpressly binds the ship and freight alone to that. The ever does not extend to tacit liens or privileges. For Code of Commerce gives to shippers a lien only on

further authorities in the French law, to the same ship and freight, consequently they have none on the effect as Boulay-Paty and Bedarride, see 2 Pouget insurance. lu general, the ship is not represented by | Prin. de Droit Mar. (ed. 1858) 415-419; 3 Eloy et Guerthe insurance, which after the loss of the ship be- raud, Des Capitaines (1860), art. 1894; Caumont Dict. comes a right existing by itself, which gives a direct de Droit Mar. tit. “Abandon Mar.," SS 54, 55; De Vilpersonal action in favor of the insured. All these leneuve et Masse, Dict. du Contentieux Commercial, principles besides agree with equity and well under- verb “Armateur," 20. stood interests of commerce. Without this rule in- In Germany the bistory of the question has been, to deed insurances on the hull of a ship would become some extent, the reverse of what it has been in France. illusory for her owner, since he would have no way, The Prussian Code, adopted in 1794, allowed shiperen by stipulating for a guaranty against barratry of owners to “free themselves from responsibility in all the master, which it is customary to do, to protect cases by a surrender of the ship, including all benefits himself against any other loss than that of the pre- of the voyage and their rights against the insurers." mium: and yet this is both the object of insurance and But Prussia was the only country that adopted this the motive for which the premium is paid." Volume rule in relation to insurance. In 1856 a scheme was 1, pp. 291, 292.

set on foot to have a conference to prepare a general During the seven years from 1827 to 1834, an anima- commercial code for all the German States. Commisted controversy was carried on in France on the ques. sioners were appointed by the several States for this tion whether article 216 of the Code of Commerce, in purpose, who held repeated sessions, but came to no speaking of the “ acts" (faits) of the master, meant to agreement on a general Code until March, 1862. The include his contracts lawfully made in the course of

Prussian commissioners strenuously urged the adop. the voyage, or only his wrongful acts, and fivally the tiou of their law on the subject of subrogation to the matter came before the legislative body for solution: claims for insurance. The arguments presented by In 1841 that body modified article 216 so as to ex- tbem are spread before us to some length in one of pressly embrace contracts of the master as well as the briefs of the counsel for the appellants. The conotber acts. It was at the same time sought to intro- vention however were not convinced, and rejected the duce a clause which should render it the owner's duty, proposition, and the Prussian commissioners were in abandoning the ship and freight, to obtain the bene- obliged to yield the point, and now/all Germany, under it of limited liability, also to abandon his claim for in- this new Commercial Code, adheres to the old mari. surance on them; but this provision failed to receive time law. It is only necessary to add that in the disilssent. The law remained as it had always been. cussions of the convention it was conceded that the In 1859 two very able works were published in maritime law had never required the surrender of the France in which the subject was again discussed ; one insurance, but only that of the ship and freight. By by Edmond Dufour, entitled “Droit Maritime;

the Commercial Code of Holland and the Ordinanco oue by J. Bedarride, entitled “Droit Commercial,” a of Bremeu this rule is expressly formulared,

" and

[ocr errors][ocr errors][merged small]

It appears therefore that the disposition of our stat- seizure for contraband cargo or illegal trade; and it ute is in conformity with the general maritime law of may even be called “the guilty thing;” but the liaEurope; and that the recent legislation in France (1874) bility of the thing is so exactly the owuer's liability, is an innovation upon that law.

that a discharge or pardon extended to him will operIt is next contended that the act of Congress does ate as a release of his property. It is true that in pot extend to the exoneration of the ship, but only United States v. Mason, 6 Biss. 350, it was held that in exonerates the owners by a surrender of the ship and a proceeding in rem for a forfeiture of goods the freight, and therefore that the plea of limited liability owner might be compelled to testify, because the suit cannot be received in a proceeding in rem. But this is not against him, but against the goods. That deargument overlooks the fact that the law gives a two-cision however was disapproved by this court in the fold remedy, surrender of the ship, or payment of its case of Boyd v. U. S.,116 U. S. 616, 637; S. C., ante,524, value: aud declares that the liability of the owner, in in which it is said: “Nor can we assent to the prothe cases provided for, shall not exceed the amount position that the proceeding (in rem) is not in effect a or value of his interest in the ship and freight. This proceeding against the owner of the property as well provision is absolute, and the owner may have the as against the goods; for it is his breach of the laws benefit of it, not only by a surrender of the ship and which has to be proved to establish the forfeiture, and freight, but by paying into court the amount of their it is his property which is sought to be forfeited. In value, appraised as of the time when the liability is the words of a great judge: 'Goods, as goods, cannot fixed. This, as we have seen, enables the owner to offend, forfeit, unlade, pay duties, or the like, but reclaim the ship, and put it into complete repair, with- men whose goods they are.'” Vaughan, C. J., in out increasing the amount of his liability. The abso- | Sheppard v. Gosnold, Vaugh. 159, 172, approved by lute declaration of the statute that his liability shall | Parker, C. B., in Mitchell v. Torup, Parker, 227, not exceed the amount or value of the ship and 236. freight, to-wit, at the termination of the voyage, has But the argument is at war with the spirit as well as the effect, when that amount is paid into court, under the text of our decisions on the subject of limited liajudicial sanction of discharging the owner's liability, bility. The case of The Benefactor, 102 U. S. 214; S. and thereby of extinguishing the liens on the vessel C., 103 id. 239, is precisely in point. That was a case itself, and of transferring those liens to the fund in of libel in rem against the vessel in fault, and the procourt. This is always the result when the owner is ceeding for a limited liability was sustained. It is allowed to bond his vessel by payment of its appraised true that this particular point was not raised, but the value into court, or by filing a stipulation with sure- parties in the case were represented by able and exties in lieu of such payment. The vessel is always dis-perienced counsel, and the point would certainly have charged from the liens existing upon it when it has been raised if they had regarded it as tenable. been subjected to a judicial sale by order of the ad- We are not only satisfied that the law does not commiralty court, or when it has been delivered to the pel the ship-owner to surrender his insurance in order owner on his stipulation with sureties.

to have the benefit of limited liability, but that a conThe claim that the lien attaches to the repairs and trary result would defeat the principal object of the betterments which the owner puts upon the vessel law. That object was to enable merchants to invest after the amount of his liability has been fixed is re- money in ships without subjecting them to an indepugnant to the entire drift and spirit of the statute. finite hazard of losing their whole property by the In ordinary cases it may be true, and undoubtedly is negligence or misconduct of the master or crew, but true, that a lien or privilege on the ship extends to and only subjecting them to the loss of their investment. affects all its accretions by repair or otherwise; but in Now to construe the law in such a manner as to prethe case of a claim for limited liability under the vent the merchant from contracting with an insurstatute, the dispositions of the statute are to govern; ance company for indemnity against the loss of his inand these, as we have seen, fix the amount of liability vestment, is contrary to the spirit of commercial jur. at a certain time, and when that liability is discharged isprudence. Why should he not be allowed to purthe lien is discharged; no matter what the then value chase such an indemnity? Is it against public policy? of the ship may have come to by means of alterations That cannot be, for public policy would equally conand repairs.

demn all insurance by which a man provides indemThe time when the amount of liability should be nity for himself against the risks of fire, losses at sea, paid into court will depend upon circumstances. If and other casualties. To hold that this cannot be the owner sets up his claim to limited liability in his done tends to discourage those who might otherwise auswer, and does not seek a general coucurrence of be willing to invest their money in the shipping creditors, it will be sufficient if the amount is paid business. It would virtually and in effect bring after the trial of the cause, and the ascertainment of back the law to the English rule, by which the the amount of liability in the decree. Payment and owner is made liable for the value of the ship satisfaction of the decree will be a discharge of the before collision, the very thing which, in all owner as agaiust all creditors represented in the de- our decisions on the subject, we have held it was the

intention of Congress to avoid by adopting the mariTo say that an owner is not liable, but that his ves- time rule. That this would be the result is evident, sel is liable, seems to us like talking in riddles. A because all ship-owners insure the greater part of their man's liability for a demand against him is measured interest in the ship, and by losing their insurance they by the amount of property that may be taken from would use the value of their ship in every case. No him to satisfy that demand. In the matter of liability form of agreement could be framed by which thes a mau and his property cannot be separated, unless could protect themselves. This is a result entirely where, for publio reasons, the law exempts particular foreign to the spirit of our legislation. kinds of property from seizure, such as the tools of a When it was urged upon the Chamber of Peers of mechanic, the homestead of a family, etc. His prop- France in 1841 to pass a law requiring the abandonerty is what those who deal with him rely on for the ment of insurance, as well as of ship and freight, in fulfillment of his obligations. Personal arrest and order to relieve the owner from liability, the suggesrestraint, when resorted to, are merely means of get- tion was not entertained. The opinion of the majorting at his property. Certain parts of his property | ity was that the relations between the ship-owner and may become solely and exclusively liable for certain lenders or shippers ought to remain entirely independdemands, as a ship bound in bottomry, or subject to ent of contracts of insurance which either could make;


that an obligation to abandon insurance would have Lord ESHER, M. R. In this case, if the plaintiff had no other tendency than to prevent insurance by the any real ground of complaint at all, it was because of owner, since he would be deprived of the benefit of it his being confined in an asylum, and his liberty being in case of loss. 3 Bedarride, art. 295, p. 361.

interfered with. That, I say, was his real complaint, The argument, that to allow the owner to keep his if he had any. Having been confined as a lunatic, he insurance would encourage negligence and reckless- brings an action against his brother-in-law for signing ness on his part, can always be made in every case of the order. To that real ground of complaint he adds insurance. It has been made and answered a hun- another plea, which if he obtains a verdict on the first, dred times. Generally a sufficient portion of the value will be of no consequence at all. He says that in the of the thing insured remains uncovered by insurance order under which he was imprisoned the defendant to prevent indifference to loss; and if the temptation states that the plaintiff was a lunatic, and that that to wish it does exist in any case, the retributions are was a libel. The addition of the libel is a great hard80 fearful as to repress the thought. To the honor of ship on the other side. It is trying to catch at a straw human nature, the exceptions to the rule are exceed- if the first plea fails, so that the plaintiff himself beingly rare.

gins by this foolish addition to what was his real It is also contended that the right to proceed for a claim, if any. With great deference to those who limited liability is waived and lost by a surrender of drew the defendant's pleading, I must say that they the vessel to the insurers, because it is then out of the drew a remarkably bad pleading. First, it was double owner's power to abandon the ship to the claimants in its form; and secondly, in the second part of that who have liens upon her. This argument assumes that duplexity it put immaterial allegations. There being abandonment is necessary, which is not the case un- the two causes of action alleged by the plaintiff, where der our law. Payment of the ship's value into court, ought only to have been one, there is no doubt that or setting up the matter as a defense, is quite as effica- the defendant was obliged to plead to both. With recious. But if abandonment were necessary, as it is by gard to the first, in the present state of the law, it being the maritime law, a surrender to the insurers does not an action for false imprisonment, the only defense interfere with or prevent a subsequent abandonment which the defendant could make to it was that he was to the creditors. The insurers take the ship cum justified in putting him into confinement. What onere, and stand in no better plight than the original would justify him? The order for confining him beowners. The liens against the ship are not extin- cause he was a lunatic. An act of Parliament has said guished by the surrender to the insurers, but may be that if a person is a lunatic, you may make an order prosecuted by the creditors notwithstanding such sur- that he shall be confined. According to the present render, unless proceedings for a limited liability are law, if a person is a lunatio you may do that. Then instituted. This is fully shown by Boulay-Paty (vol. if you undertake to make that order you run the risk 1, pp. 293–297), and by Bedarride, in article 291 of his of its being proved hereafter that he was not a lunatic. work, above cited. The former, after showing that If he was not a lunatic, you have no right to make the abandonment to the lien creditors may be made, not- order. Therefore the defense to that part of the withstanding a previous surrender to the insurers, and claim is that the plaintiff is a lunatic. Looking at the explaining the reason of it, says: “It follows from certificate which is to be given by the doctor accord. thence that the owner may, by abandonment, turn ing to the act--although it is not set forth in the actthe shippers (of cargo) over to the insurers (now be- A person must not only apparently be a lunatic, but come the owners by the surrender of ship and freight also must be a lunatic and a person who ought to be to them), and thus make abandonment and surrender under care and treatment. If that is true, then the at the same time." 1 Boulay-Paty, 295.

defense to the false imprisonment is that the plaintiff This disposes of all the important points in the case, was a lunatio, and so far a lunatio that it was right to and leads to the conclusion that the decree of the put him under care and treatment. That is the deCircuit Court was right, and it is affirmed.

fense, and nothing else is a defense. It does not sig. Matthews, Miller, Harlan and Gray, JJ., dissenting. nify whether the person who signed the order had the

most reasonable and probable cause to think that his

brother was a lunatic. If he signed that order, accord. BILL OF PARTICULARS LIBEL.

ing to the present law, he must justify that by prov

ing that his brother was a lunatic. Then there is his ENGLISH COURT OF APPEAL, MARCH 12, 1886.

defense. Now that is not a general defense which may be one or other of two defenses. It is the de

fense, and there are two facts to be proved-first, that CAVE TORRE.*

the plaintiff was a lunatic; and secondly, if necessary The plaintiff sued the defendant for having wrongfully made --if that is part of the defense, that he was such a lu

and signed an order, stating that the plaintiff was a per. natio as that it was right and proper to put him under son of unsound mind, in consequence of which the plaintiff

care and treatment. Then it is said the defendant had been assaulted and removed to a lunatic asylum and

must give the particulars. What particulars can be kept there against his will; and he also claimed damages

give of that? He has got to prove those two facts. for the libel contained in such order. The defendant, in

There are no particulars to give. There is evidence to his defense, pleaded reasonable and probable cause for give. How is it proved that a man is a lupatic? The believing the plaintiff to have been a person of unsound

evidence may be of some one act that he has done that mind, and fit to be detained under care and treatment.

would satisfy any one that he was a lunatic. It would Held (reversing the decision of the court below, 5 L. T. Rep. be wicked to go through the sort of acts that might (N. S.) 87; see 33 Alb. L. J. 282), that the allegation of

prove it. One knows perfectly well that one act might reasonable and probable cause was an immaterial allega

prove it. The evidence may also consist of a great tion, and that the defendant could not be ordered to give

many different facts, but there is no law which reparticulars thereof.

quires you to give particulars of the evidence which 'HE

you are going to adduce to prove a particular fact.

Therefore the particulars asked for really constitute Robert G. Glenn, for appellant.

the evidence which the defendant is supposed to be

going to give, in order to prove the two separate facts W. P. Boxall, for respondent.

which he has undertaken to prove. Then we come to *54 L. T. Rep. (N. S.) 515.

the question of libel. If the defendaut bad pleaded

TAE opinion states the point,

« AnteriorContinuar »