1854.

The QUEEN

V.

HUNTLEY.

But the present order is valid under stat. 17 G. 2. c. 38. s. 4., whatever be the effect of stat. 12 & 13 Vict. c. 45. s. 5. Therefore the present rule must be discharged, and with costs.

Rule discharged with costs.

Tuesday, January 17th.

A ship was insured on a time policy, for a year ending 21st April 1852. In December 1851, being

on her home. ward voyage from Valparaiso to Liverpool, she was cap

tured by pirates

DEAN and Another against HORNBY.

ACTION on a policy of insurance upon the vessel

Eliza Cornish. The writ issued on 9th December 1852: and the parties, under stat. 15 & 16 Vict. c. 76. (The Common Law Procedure Act, 1852) s. 46., desired the opinion of the Court on a case in substance as follows.

The Eliza Cornish was insured from the 22d of April 1851 to the 21st April 1852, both days included. The case set out the policy, whereby the plaintiffs effected the insurance on the ship, valued at 18007.; and among recaptured by the perils insured against were "pirates" and "takings

in the Straits of Magellan : in January 1852 she was

an English

war steamer;

and a prize

master took the command, and brought her to Valparaiso. Intelligence of all these facts reached the owners, at one time, about the end of April 1852; and they, on 30th April 1852, gave notice of abandonment to the underwriters, stating that intelligence had arrived "of the condemnation at Valparaiso" of the vessel "as a prize to Her Majesty's steamer." The underwriters refused to accept.

The vessel was sent home by the recaptors from Valparaiso, under the command of a prize master, with instructions to proceed to Liverpool, and obtain an adjudication in the Court of Admiralty. She met with bad weather, and put into Fayal on 19th August 1852, where she was sold by the prize master, being then in a state not justifying the sale.

In December 1852, the owners commenced an action against the underwriters, claiming for a total loss. Held: that they were entitled to recover as for a total loss, there having been a total loss by the piratical seizure, in the first instance, and the owners not having afterwards, up to the time of the commencement of the action, had either actual possession or the means of obtaining it: and it being immaterial whether there was or was not a right of detainer against the owners.

That the notice of abandonment was early enough, being given in reasonable time after the receipt of the intelligence of the loss.

That the inaccurate statement of the vessel having been condemned as a prize at Valpa

raiso did not vitiate the notice.

at sea." The policy was duly underwritten by the defendant and fifteen other underwriters.

On 7th November 1851, the Eliza Cornish set sail on her homeward voyage from Valparaiso to Liverpool, with a cargo and crew consisting of the master and six hands. On 1st December 1851, she put into Punta Arenas, in the Straits of Magellan, to repair some slight sea damage she had received. On the same day she was boarded by an armed force from the shore, who took forcible possession of her, and placed the master and crew under restraint, and conveyed them as prisoners ashore. The persons who committed this outrage were Chilians, acting under the orders of one Lieutenant Cambiaso. The Chilian Government had a penal settlement at Punta Arenas, which had been placed under the charge of a governor, named Munioz, of a captain Salas, and others, among whom was Lieutenant Cambiaso, and a few soldiers. Shortly after the arrival of the Eliza Cornish, there was a mutiny and 'insurrection at the settlement. Cambiaso and some of the soldiers conspired with some of the convicts against Munioz. Munioz was shot by them, the soldiers overpowered; and Cambiaso assumed the command. Nothing was known of these events by those on board the Eliza Cornish when she put into Punta Arenas as aforesaid, as a friendly port. Having taken possession of the said vessel as aforesaid, the insurgents under the command of Cambiaso shot the master, and kept the crew in confinement. The insurgents threw overboard all the upper part of the cargo, consisting of guano, cocoa and bark, and plundered her of treasure amounting to about 20,0001. sterling. The mate of the vessel remained in confinement until 13th December 1851; when, fearing

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DEAN

V.

HORNBY.

1854.

DEAN

V.

HORNBY.

that he would be shot if he refused, he agreed to navigate the vessel to Aranco; and he and the remainder of the crew prepared the vessel for sea again, working under a guard of soldiers, and being placed in confinement on shore at night.

On the 31st December, from 180 to 200 persons were placed on board, with cannon and other arms, and a piratical flag. On the 2d January 1852, the vessel got under weigh, in company with the Florida, an American vessel, which Cambiaso's party had also seized; Cambiaso taking command of the Florida, and his second in command, named Briones, took command of the Eliza Cornish. Briones and his men exercised themselves with arms, and occasionally hoisted the piratical flag.

On 28th January 1852, before the Eliza Cornish got clear of the Straits of Magellan, she was rescued by Her Majesty's steam ship Virago; which vessel had been sent from Valparaiso for the purpose, at the request of the Chilian Government: and most of the treasure, which was found on the persons of the insurgents who were on board the Eliza Cornish and the Florida, was recovered and reshipped on board the Eliza Cornish. The commander of the Virago took possession of the Eliza Cornish, and put two officers and some men in charge of her, with directions to take her to Valparaiso. She arrived at Valparaiso on the 23d February, 1852, where she remained in the custody and possession of the officer of the Virago.

On 10th March 1852, she again left Valparaiso for Liverpool, with the remainder of her cargo, in charge of onc Charles Bowden, one of the commissioned officers of Her Majesty's ship Dedalus, with two other officers

and eight seamen belonging to the Virago and Dadalus. These officers and men were placed in charge of her by the commander of the Virago, who sent her to England, with instructions to have the matter adjudicated upon by the Court of Admiralty. The mate and four of the crew of the Eliza Cornish also remained on board. The Eliza Cornish had received no damage, and sailed from Valparaiso with much the largest part of her cargo, which was very valuable. The vessel, on her homeward voyage, met with bad weather, and bore up for Monte Video, to repair sea damage on 14th April 1852. She arrived there on 24th April 1852. She sailed again, after being repaired, on 25th June 1852; and, having again met with bad weather, and suffered damage, she was obliged to put into Fayal, where she arrived on 19th August 1852. On 21st August 1852, she was surveyed; two subsequent surveys were held upon her; when the surveyors recommended that she should be sold as unfit for repairs: and she was afterwards sold by the said Charles Bowden; and the proceeds of the sale were received by him. From the time she last left Valparaiso until the time of her sale at Fayal, she was in the possession and under the controul of the said Charles Bowden, under the circumstances before mentioned. She was repaired by the purchaser at a trifling expence, and has since arrived in England; and therefore Mr. Bowden was not justified in selling her.

In the early part of 1853, after it was discovered that the Eliza Cornish (her name having been changed to the Segredo) had arrived in England, proceedings were taken against her in the Admiralty Court by the plaintiffs and defendant in concert; which proceedings, by previous agreement between them, were to be without

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DEAN

V.

HORNBY.

1854.

DEAN

V.

HORNBY.

prejudice to either of the said parties as to their legal rights under the circumstances above set forth, as if such proceedings had not been taken. And, the Court of Admiralty having decreed the possession to the owners, she has been sold, with the consent of the plaintiffs and defendant, and the money deposited to await the result of this case. The plaintiffs received intelligence of the seizure of the vessel at Punta Arenas, of her capture by the Virago, and of her having been taken to Valparaiso in charge of a prize crew, at the same time, viz. about the end of April 1852. And, on the 30th of that month, they addressed to the defendant and the other underwriters the following notice of abandonment.

Liverpool 30th April, 1852.

"Messrs. Headlam & Langton, Liverpool.

"Gentlemen,

Having been informed by Mr. Myers, of the firm of W. J. Myers & Co., that intelligence has arrived of the condemnation at Valparaiso of the brigantine Eliza Cornish, as a prize to her Majesty's steamer Virago, we will thank you to inform the underwriters on our policy on that vessel, effected through you for 800%, on the 14th May 1851, that we abandon to them and the other underwriters in that vessel at Lloyd's, London, our interest therein, and claim a total loss on our policies. And will thank you to send us in a credit note for the amount as customary.

"We remain, &c.

"Dean & Mills."

To which they received the following reply.

"Gentlemen,

"We have received your favour of yesterday, tendering