1876 H. L. (E.) debt which was his during his lifetime, having the rights which he would have possessed, and affected by the disqualification to which he would have been subject, had he continued to exist. And so Lord Eldon held in Ex parte Carter (1). NANSON V. GORDON. I think it also immaterial whether the claim sought to be proved by the partner is a definitively-ascertained debt, or a debt merely ascertainable; and I see no reason for holding that, the demand of the executors being for money lent, they are on that account enabled to evade the rule, which, in my view of it, forbids them to prove in competition with the creditors of their testator. These were the chief grounds of the argument for the Appellants. In my opinion it failed on both of them; and this being so, I content myself by saying that I think your Lordships have been well advised to refuse to disturb a rule of law so long in operation, having such high sanction, and apparently so equitable in itself and so beneficial to the public interests. I think that the proof should be disallowed, the judgment of the Lords Justices affirmed, and the appeal dismissed. Order appealed from affirmed, and appeal dismissed with costs. Lords' Journals, 2nd March, 1876. Solicitors for the Appellant: Pattison, Wigg, & Co. (1) 2 Gl. & J. 233. Shipowner and charterer may agree, by the terms of a charterparty, that a portion of the stipulated freight shall be prepaid: and such prepayment will not affect its legal character of freight; the remainder may be the subject of insurance by the shipowner. A ship was chartered to sail from Greenock to Bombay, to carry a cargo of coals. Freight was to be paid on unloading and right delivery of the cargo at and after the rate of 42s. per ton of 20 cwts. on the quantity delivered. It was provided that "such freight is to be paid, say one half in cash on signing bills of lading less four months' interest at Bank rate, but not less than 5 per cent. per annum, 5 per cent. for insurance, and 2 per cent. on gross amount of freight in lieu of consignment at Bombay, and the remainder on right delivery of the cargo, less cost of coals short delivered, in cash, at current rates of exchange for bills on London at six months' sight." Half of the estimated amount of the freight was paid in London. The shipowner effected two insurances, one for £500 "on freight valued at £2000," the other for £700 "on freight payable abroad valued at £2000." The ship was lost before entering Bombay harbour, but one half of the cargo was saved and delivered. The master, in the belief that the prepayment had satisfied the freight on this half so delivered, made no demand on the charterer. The shipowner claimed on his policies as for a total loss of the other half of the freight : Held, that on the proper construction of the policy the whole sum agreed upon constituted freight; that half of the whole sum of that freight had been paid in England; that it was not a prepayment of half the rate of freight calculated as distributed over the whole cargo, but of half the whole gross freight; that half of the whole remained to be paid abroad on right delivery of the cargo; that that half had been lost through perils of the sea, and that the shipowner was entitled on his policies on freight to recover as for the total loss of that half. The dictum of Lord Kingsdown in Kirchner v. Venus (1) considered and explained. THIS HIS was an appeal under the Common Law Procedure Act, 1854. 1876 Feb. 25; March 30. VOL. I. (1) 12 Moo. P. C. 361. 3 Р 1875-6 H. L. (E.) Prince, belonging to the port of Glasgow. On the 7th of March, 1867, the Plaintiff chartered this ship to Mr. De Mattos of London, for a voyage from Glasgow to Bombay with a cargo of coals. The material parts of the charterparty were those which related to the payment of freight, and they were in the following terms: ALLISON V. BRISTOL INSURANCE CO. "The freight to be paid on unloading and right delivery of the cargo at and after the rate of 42s. sterling per ton of 20 cwts., on the quantity delivered, in full of all port charges, pilotages, Bute Dock wharfage, harbour dues on cargo, and Dover and Ramsgate dues, as customary, and such freight is to be paid, say, one half in cash on signing bills of lading, less four months' interest at Bank rate, but not less than 5 per cent. per annum, 5 per cent. for insurance, and 2 per cent. on the gross amount of freight in lieu of consignment at Bombay, and the remainder on right delivery of the cargo, agreeably to bills of lading, less cost of coal short delivered, in cash, at current prices of exchange for bills on London at six months' sight. . . . The vessel to be addressed to the freighter's agent free of commission." On the 13th of April, 1867, the Plaintiff effected with the Defendants an insurance for £500" on freight valued at £2000." On the 15th of April the master signed bills of lading acknowledging the delivery on board of 2178 tons of coal. On the same day the Plaintiff gave the following receipt, indorsed on the bill of lading, acknowledging the payment of half the stipulated freight : "Received from W. N. De Mattos, Esq., the sum of £2286 18s. sterling, being advance of half freight on within shipment, the owner having paid all charges, including consignment commission at Bombay, as per charterparty." On the 23rd of April the Plaintiff effected with the Defendants another insurance for £700 "on freight payable abroad valued at £2000." He also effected two other policies with other insurers, bringing the whole amount of freight insured up to £2000, which was the sum he expected to receive on delivery of the full cargo. On the 20th of April De Mattos effected, on his own behalf, an insurance on the cargo of the Merchant Prince for the said voyage. The policy stated it to be "on 2178 tons of coals, and increased H. L. (E.) value thereof, by prepayment of freight, valued at £4500." On the 27th of April, 1867, the ship left Greenock for Bombay. On the 8th of August it struck on a reef called Chaoul Kadee Reef, about eight miles from Bombay, and there became a total wreck. About 1050 tons of coals were saved and landed at Bombay, and there sold. No charge for freight was made at Bombay in respect of this half of the cargo actually delivered, the master treating that part of the cargo as constituting the half on which the freight had already been paid in England. The Plaintiff claimed as for a total loss of the half of the freight thus left unpaid. The Plaintiff brought his action on the two policies. The first count of the declaration was on the policy for £700 on "freight payable abroad"; the second count on the policy for £500. There were the usual money counts. The Defendants pleaded as to both counts, except as to £250, payment into Court of £440, and as to the £250 payment, and as to the money counts never indebted. The cause was tried before Mr. Justice Brett in December, 1872, when by consent a verdict was taken for the Plaintiff for the damages in the declaration, subject to leave for the Defendants to move to enter the verdict for them, or to reduce the damages. A rule for that purpose having been obtained in the Court of Common Pleas, the case was there argued, and Lord Chief Justice Bovill, Mr. Justice Brett, and Mr. Justice Grove were of opinion that the Plaintiff was entitled to claim as for a total loss, and discharged the rule. The case was taken on appeal to the Court of Exchequer Chamber, where Mr. Baron Cleasby and Mr. Baron Pollock were for affirming the judgment, but Lord Chief Justice Cockburn, Mr. Justice Mellor, and Mr. Baron Amphlett were for reversing it (1). It was accordingly reversed, and this appeal was then brought. The Judges were summoned, and the Lord Chief Baron Kelly, Mr. Justice Blackburn, Mr. Justice Mellor, Mr. Justice Brett, Mr. Justice Grove, and Mr. Baron Pollock, attended. 1875-6 ALLISON บ. BRISTOL MARINE INSURANCE CO. (1) Law Rep. 9 C. P. 559. H. L. (E.) 1875-6 ALLISON v. MARINE Mr. Watkin Williams, Q.C., and Mr. J. A. McLeod (Mr. Cohen, Q.C. was with them), for the Appellant: The policies cover the freight, which had to be earned, and BRISTOL which could only be earned on right delivery of the cargo. That INSURANCE CO. Was the freight on one half of the cargo. The freight as settled by this charterparty was divided into two lump sums, one was to be paid here, and was paid here; the other was to be paid at Bombay. As only one half the cargo was delivered at Bombay, and the payment of freight was to be on right delivery of the cargo, the half cargo delivered was properly treated as the half on which the freight had been paid in England; the other half of the cargo not being delivered at all, no freight could be demanded for it. The freight on it was lost, and that was the freight in respect of which the Plaintiff had effected his insurances, and on them he is entitled to recover as for a total loss. The money paid in London was not a loan, but a prepayment of half the freight. It could not have been recovered back: De Silvale v. Kendall (1). It was distinctly declared in the charterparty itself to be freight, and the facts of this case do not allow it to be brought within the dictum of Lord Kingsdown in Kirchner v. Venus (2), the circumstances of the two cases being entirely different. Wages would be due on the part so prepaid, as if the ship had safely arrived in the delivery port: Anonymous (3). In The Karnak (4) it was held that the question, whether an advance of money was to be treated as a loan or as a prepayment of freight, must depend on the instruments executed between the parties, and that decision was in accordance with the previous case of Hicks v. Shield (5). The insurable risk which the Plaintiff had was the one-half of the whole amount of the cargo which had to be earned-that onehalf was lost. He had nothing to do with insuring the other half that had been paid, which, being a sum that might be lost, for it could never be recovered back from the shipowner, the charterer had good title to insure, but what the charterer did in that manner can in no way affect the rights of the Plaintiff upon that (1) 4 M. & S. 37. (3) 2 Show. 283. (2) 12 Moo. P. C. 361, at p. 390. (4) Law Rep. 2 A. & E. 289, (5) 7 El. & Bl. 633. |