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A. Lawful or Accidental.



[Reported L. R. 3 C. P. 427.] DECLARATION on a policy of marine insurance, averring a total loss.

Pleas: 1. Payment into court of £122. 2. Except as to £122, payment before action.

The plaintiffs took the £122 out of court, and joined issue on the second plea.

The cause was tried before Shee, J., at the Liverpool summer assizes, 1867. The facts were as follows: The plaintiffs are merchants at Liverpool. The defendants are marine insurance company also carrying on business at Liverpool. The action was brought to recover a total or salvage loss on a policy of insurance at and from Mobile to Liverpool, on forty-three bales of cotton, marked and numbered as therein mentioned, in the ship called the Caroline Nasmyth.

The defendants paid the plaintiffs before action £1150, being 50 per cent on the policy.

On the 10th of October, 1865, the Caroline Nasmyth sailed from Mobile with a cargo of cotton consisting of 2493 bales belonging to various owners, and shipped under separate bills of lading; 532 bales (including the 43 for the loss of which the action was brought) belonged to the plaintiffs, who effected insurances with the defendants thereon under six different policies, one of which was the policy sued upon. The vessel on the 23d of October, 1865, after having been at sea thirteen days, took the ground on the Florida reef, about eighty miles from Key West, and became a total wreck. The cargo was landed at Key West, all more or less damaged, and many of the bales broken, the marks and numbers on others entirely obliterated. Some bales were lost, and some were so damaged that they had to be sold at Key West. The remainder of the cotton was forwarded to Liverpool in a vessel chartered by the master at Key West.

Of the 2493 bales which were on board the Caroline Nasmyth when she sailed on her voyage, 617 bales arrived in Liverpool in such a state that they could be identified, and they were delivered to the different consignees, but more or less damaged ; 1645 bales were sold at Liverpool, the inarks being so obliterated by sea-water that they could not be identified as belonging to any particular consignee, and 231 bales were either lost on the reef or sold at Key West. Of the plaintiff's 43 bales, two only (of the value of £59 128. 11d.) could be identified at Liverpool, and these were delivered to the plaintiffs.

Due notice of the abandonment of the 41 bales had been given by the plaintiffs.

Subject to a question as to the correctness of the calculation, the underwriters had paid the plaintiffs their share (in the proportion of 43 to 2493) on the value of the cotton which was actually lost, and also (under an arrangement which was made for the sale of the cotton without prejudice to the rights of the parties) in the same proportion for the damage to the cotton which arrived at Liverpool but could not be identified.

It was contended on the part of the plaintiffs, that, as no one of their remaining 41 bales arrived in Liverpool in such a state that it could be identified, they were entitled to treat the loss as a total loss with benefit of salvage. It was conceded that, if it were an average loss only, the £122 paid into court, plus the sum paid before action, would cover the plaintiff's' claim.

The defendants contended that they were entitled to assume that, of the plaintiffs' remaining 41 bales, part were among those lost at Key West and part amongst those which arrived at Liverpool ; and that, upon that assumption, the loss would be an average loss, and covered by the payment into court.

A verdict was entered for the plaintiffs for £460, subject to leave reserved to the defendants to move to enter the verdict for them.

E. James, Q.C., in Easter Term, accordingly obtained a rule nisi to enter a verdict for the defendants or a nonsnit.

Brett, Q.C., Quain, Q. C., and R. G. Williams, shewed cause.
Cohen and C. Russell (Mellish, Q. C., with them).

Bovill, C. J. This case was argued before us last term, with great learning and ability on both sides; and we are much indebted to the learned counsel for the assistance they have rendered to the Court.

The plaintiff's claimed to recover against the defendants as for a total loss of forty-one bales of cotton. The defendants paid a sum of money into court upon the principle of there having been a total loss of a small portion of the cotton and a partial loss only of the remainder, according to a calculation of the proportion that would be applicable to the plaintiffs' cotton with reference to the 231 bales which were actually lost, and the 1645 bales which arrived, but without any marks or the means of distinguishing the respective owners to whom those bales belonged. The principal question in the case was, whether there was a total loss of the whole of the plaintiffs' forty-one bales which were not delivered.

The ground upon which the plaintiffs contended for such a total loss was, that the whole forty-one bales must be considered as included in

the 231 bales, or that, by the perils of the seas, the marks on the plaintiff's' bales, as well as upon other bales of cotton in the same ship, and which reached this country, had become obliterated, so that it was impossible to distinguish one person's cotton from that of another, and therefore impossible for the plaintiffs to obtain the identical bales which they had insured.

Subject to a subordinate question as to the correctness of the calculation, the plaintiffs had been paid their proportion of the cotton that was actually lost, and had been offered what would be their proportion of the cotton which was saved, or, rather, its equivalent in money was paid to them under the arrangement that was made for sale of the cotton without prejudice to the rights of the parties; but, the price of cotton having fallen very materially in the market, the plaintiffs endeavored to treat the obliteration of the marks, and the consequent impossibility of identifying any of the bales except the two which were delivered to them, as a total loss, and contended that, as the impossibility of the ship-owner delivering to them their identical bales of cotton had been caused by the perils of the seas, it was a total loss, either actual or constructive, within the meaning of the policy.

It is manifest that the plaintiffs' argument would equally apply if not a single bale of cotton had been lost or damaged out of the whole cargo, and if the marks only had been obliterated from this and other cotton by the same vessel; and it would lead to the strange anomaly that, although all the goods which had been put on board arrived safely at their destination, there would, according to the plaintiffs' contention, he a total loss, for the purpose of insurance law, of the whole of them. Indeed, in every case of the accidental confusion of goods on board a ship, so that they could not be identified, where it arose from the perils of the seas, if the principle contended for by the plaintiffs be correct, it might be said that the ship-owner was absolved from any liability to deliver the goods, and this strange conclusion would also follow, that, if the cargo all belonged to one owner, it might be said to be entirely safe and uninjured, under circumstances in which, if there were two owners, however small the proportion of one of them, it must be said to be totally lost; so that, if one shipper owned ninetynine bales, and another, one, of the same description, and by reason of the stranding of the vessel all were transhipped with the loss of the marks, after which the cargo arrived safe, each owner would have wholly lost all he had, because neither could affirm as to any given bale that it belonged to him. Practically, in such a case, the owner of the one bale would receive one of the bales, either by delivery of the ship-owner or by agreement, and probably be content, and this ought to operate as a partition, so as to vest the residue in the owner of the larger share.

We must, thus, necessarily consider what is the effect of the oblito ! eration of marks upon various goods of the same description which are shipped in one vessel, and which without any fault of the owners be

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come so mixed that one part is undistinguishable from another; and it seems to us not altogether immaterial to inquire in whom the property in the goods is vested under such circumstances, or whether they become bona vacantia, and pass to the first finder or to the Crown. In endeavoring to arrive at a conclusion upon that subject, we should be guided by any direct authorities as well as by analogous cases in our own law, and by the principles of law which have been laid down and established in our courts; and, as the rules and principles of our mercantile and maritime law are in a large measure derived from foreign sources, we gladly avail ourselves of the codes and laws of other countries, and especially of the Roman Civil Law, to see what amongst civilized nations has usually in like cases been considered reasonable

and just.

In our own law there are not many authorities to be found upon this subject; but, as far as they go, they are in favor of the view, that, when goods of different owners become by accident so mixed together as to be undistinguishable, the owners of the goods so mixed become tenants in common of the whole, in the proportions which they have severally contributed to it. The passage cited from the judgment of Blackburn, J., in the case of the tallow which was melted and flowed into the sewers, is to that effect. Buckley v. Gross, 3 B. & S. 574. And a similar view was adopted by Lord Abinger in the case of the mixture of oil by leakage on board ship, in Jones v. Moore, 4 Y. & C. 351.

It has been long settled in our law, that, where goods are mixed so as to become undistinguishable, by the wrongful act or default of one owner, he cannot recover, and will not be entitled to his proportion, or any part of the property, from the other owner : but no authority has been cited to show that any such principle has ever been applied, nor indeed could it be applied, to the case of an accidental mixing of the goods of two owners; and there is no authority nor sound reason for saying that the goods of several persons which are accidentally mixed together thereby absolutely cease to be the property of their several owners, and become bona vacantia.

The goods being before they are mixed the separate property of the several owners, unless, which is absurd, they cease to be property by reason of the accidental mixture, when they would not so cease if the mixture were designed, must continue to be the property of the original owners; and, as there would be no means of distinguishing the goods of each, the several owners seem necessarily to become jointly interested, as tenants in common, in the bulk.

This is the rule of the Roman Law as stated in Mackeldey's Modern Civil Law, under the title Commixtio et Confusio, in the special part, Book 1, s. 270. In the English edition of 1845, at p. 285, the passage is as follows: "The mixing together of things solid or dry (commixtio) or of things liquid (confusio) which belong to different owners, has no effect upon their rights in the things, if the latter can be separated.

If, on the other hand, such separation is not practicable, then the former proprietors of the things now connected will be joint owners of the whole, whenever the mixture has been made with the consent of both parties, or by accident."

We need not discuss the distinction sometimes made between commixtio and confusio, apparently upon the ground that it is possible to separate the individual solid particles, but not the liquid ; because, in cases like the present, it is impracticable, and for all business purposes therefore impossible, to distinguish the particles, in respect of ownership.

The passages in Mr. Justice Story's work on Bailments, s. 40, and in the 9th volume of Pothier, “ De La Confusion,” as well as the French and various other codes, are to the same effect.

We are thus, by authorities in our own law, by the reason of the thing, and by the concurrence of foreign writers, justified in adopting the conclusion that, by our own law, the property in the cotton of which the marks were obliterated did not cease to belong to the respective owners; and that, by the mixture of the bales, and their becoming undistinguishable by reason of the action of the sea, and without the fault of the respective owners, these parties became tenants in common of the cotton, in proportion to their respective interests. This result would follow only in those cases where, after the adoption of all reasonable means and exertions to identify or separate the goods, it was found impracticable to do so.

We cannot assume that the whole of the plaintiffs' forty-one bales were amongst those that were destroyed, any more than we can assume that they all formed part of the 1645 which were brought home ; and we see no means of determining the extent of the interest of the several owners, except by adopting a principle of proportion, and which would, we think, be equally applicable in determining the plaintiff's portion of the 231 bales that were totally lost as of the 1645 which arrived in this country, though without the marks.

The principle of proportion is that which was applied by Lord Ellenborough, where one gross sum was paid to a broker in respect of two debts due to different principals without distinguishing how much was paid in respect of each. Flavenc v. Bennett, 11 East, at p. 41. It is also the principle adopted in cases of general average, and of jettison, where it is not known whose goods are sacrificed, as stated by Cassaregis and Emerigon in the passages that were quoted in the argument; and we think it is the proper principle to apply to this case.

Upon the main question, therefore, that was argued before us, we think that there was not an actual total loss of the plaintiffs’ forty-one bales of cotton. We think also there was not a constructive total loss! of those bales. We adopt the principle upon which the defendants have paid money into court; and our decision upon this question is in their favor.

It was attempted to show by calculations what was the probability of

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