The ‘SELBY’ was captured by a French privateer in the Atlantic during the Seven Years War, and then recaptured from her French prize crew a few weeks later by a British man-of-war. News of the capture and recapture reached the assured simultaneously. He purported to give notice of abandonment.
Held: The ship was never a constructive total loss, because it was never sufficiently clear that the loss arising from the original capture would be permanent. But on the footing that it was a constructive total loss, he held that the assured could recover only for a partial loss, arising from the prize due to the recaptors.
The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case.
‘The plaintiff’s demand is for an indemnity. His action, then, must be founded upon the nature of his damnification, as it really is at the time the action is brought. It is repugnant, upon a contract of indemnity, to recover as for a total loss, when the final event has decided that the damnification, in truth, is an average, or perhaps no loss at all. Whatever undoes the damnification, in whole or in part, must operate upon the indemnity in the same degree. It is a contradiction in terms, to bring an action for indemnity, when, upon the whole event, no damage has been sustained.’
Judges:
Lord Mansfield
Citations:
97 ER 787, (1761) 2 Burr 1198, [1761] EngR 56, (1761) 2 Burr 1198, (1761) 97 ER 787
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Sveriges Angfartygs Assurans Forening (The Swedish Club) and Others v Connect Shipping Inc and Another SC 12-Jun-2019
The Court was asked as to the construction of the phrase ‘constructive total loss’, and in particular the calculation the expenditure to be taken into account in computing the cost of recovery and or repair, where notice of loss had been served . .
Lists of cited by and citing cases may be incomplete.
Contract, Transport
Updated: 04 April 2022; Ref: scu.180645