1820. DAVIDSON V. CASE. had arisen from supposing, that under an abandonment a ship passed precisely in the same manner as under a sale. Under the sale of a ship, if nothing was said to the contrary, the freight would pass but the cases were in reality very different; for, in the case of a sale, and especially in the sale of a ship at sea, the freight about to be earned was part of the property for which the purchaser expressly paid his money: it was, in fact, the chief object of his contract; whereas, in the case of an abandonment, there being at the time of the abandonment no contract, no particular object of stipulation, the abandonee could only take that for the loss of which he had paid by his insurance. If, therefore, he had only paid for the loss of the body of the ship, why should he gain more by the result of an abandonment, and gain it to the loss of another insurer, who seemed to have the same claim to recover the object of his distinct insurance. Where the second insurer had such a separate claim, the abandoner could not transfer to the first any thing more than the thing insured. The underwriter on ship had no more right to complain that he was deprived of freight under such circumstances, than a purchaser excluded from it by express agreement. It must, however, be contended, that if the argument were correct, the owner of a ship who had not insured freight was, as well as an insurer on freight, entitled to the freight, after he had abandoned the ship to the insurer on ship; and this seemed to be the opinion of the Lord Chancellor, in Mestaer v. Gillespie (a). The question could only be argued on principle, as the cases were decided each on its own peculiar circumstances. Scarlett, contrà. No distinction can be drawn between an assignment of the ship and an abandonment. (a) 11 Ves. jun. 625. An An abandonment, where the ship re-appears, is always followed up by a regular assignment: under an assignment, the freight passes to the assignee, Chinnery v. Blackburne (a), Splidt v. Bowles (b). It is as much incident to a ship as rent to a house; and this principle has been pushed to a rigorous extent. Camden v. Anderson (c), Morrison v. Parsons (d). Even where the ship is chartered, and the assignee cannot, by reason of a technical rule of law, sue in his own name, payment of the freight to him will be good. The law being such, it is no hardship on the insurer on freight; for every man who enters into a contract is supposed to know all the consequences of it; and the inconvenience of a different rule is very obvious. Suppose insurance of ship by one, and of freight by another: the ship is captured, and the owner abandons. If the insurer on ship obtains her by recapture, is he bound to pursue the same voyage, in order that the insurer on freight may obtain the benefit of an abandonment of freight? And yet this and many such difficulties must occur, if it be once held that the right to freight does not in all cases follow the ship. But further, abandonment can only be of that which is material, tangible, and capable of being taken possession of by the abandonee. Right to freight is no more than right to the performance of a contract; a thing intangible, and existing in idea only, and, as a chose in action, not transferable by the law of England. It is clear, therefore, that the Plaintiff in error cannot support his claim on principle; and the cases are all against him. Thompson v. Rowcroft (e), Leatham v. Terry (ƒ), M'Carthy v. Abel (g), Sharp v. Gladstone (h), Splidt v. Bowles. (a) 1 H. Bl. 117. 1820. DAVIDSON V. CASE. 1820. DAVIDSON v. CASE. Littledale was then heard in reply. And now, 2 DALLAS C. J. delivered the judgment of the Court.-— This case comes before the Court on error from the King's Bench; and it will not be necessary to state the facts in detail, as they will be found fully and accurately set forth in the printed report of what passed on the original hearing. It will be sufficient to observe, that there having been two separate insurances, the one on ship and the other on freight, and the ship having been captured in the course of the voyage, and re-captured, and having ultimately earned freight, and there having been an abandonment of ship to the underwriters on ship, and of freight to the underwriters on freight, the question arises, whether, upon such abandonments, the abandonment of ship includes freight, or whether the underwriters on freight are entitled thereto as having insured the freight specifically, and having from the assured an abandonment of such freight, under the insurance so made? This question, long depending, but always avoided, because in former cases not necessary to be decided, has at last been determined by that Court, from whose judgment error is now brought, three of the learned Judges having been of opinion that an abandonment of ship included freight, and a different opinion having been declared by Mr. Justice Bayley, who considered that an abandonment of freight carried with it such freight, as a subject separate and distinct from ship, under and with reference to contracts of insurance. It would be an idle parade and waste of time to go into the subject at large, fully treated of, as it is, in all the elementary works on insurance law; and more particularly as the printed report, to which I have already alluded, contains all, in point of authority and observation, that can properly belong to the question. 17 I shall, I shall, therefore, merely advert to the general grounds on which the argument has proceeded, and on which the decision must now depend. And, first, it is not denied that, generally speaking, an assignment of ship includes freight. But, it is said that it does so, because such is the natural effect and consequence of such assignment, and that there is no agreement between the parties to the contrary; whereas, in cases of abandonment under insurance, such agreement is to be implied from the practice of making separate insurances, which the law of this country (different, in this respect, from the law of other countries,) permits; and that the law will, therefore, keep the interest of the parties separate and distinct, giving to the underwriter on ship the ship abandoned, and the freight to the underwriter on freight. That this practice has prevailed is undoubtedly true; but it is a fallacy to confound the fact of such practice with the legal effect of it, for it is the practice itself that raises the legal question. To make the practice decisive of the law, it would be necessary to go further, and to show a practice of settling losses, in conformity to the underwriters on ship having never claimed the freight, and the underwriters on freight having constantly received it. Such a practice, if of sufficient prevalence and notoriety to raise the presumption of general knowledge, would show the understanding of parties, with reference to which they must be taken to deal; and would therefore form the contract between those who were respectively privy to it. But it was admitted in the argument in the court below, adverted to from the bench, and has again been admitted in the argument here, that there has been no such practice; but that, on the contrary, the question has rested altogether hitherto in controversy, the underwriters on ship having, in every instance, resisted the claim of the underwriters on 1820. DAVIDSON V. CASE. 1820. DAVIDSON V. CASE. freight, asserting the freight to belong to themselves as owners of the ship by the abandonment made. That there has been any actual agreement to the contrary, in this case, is not pretended; and it seems to follow of course, that from the mere practice of insuring separately, no such agreement can be implied when the practice stops with the fact of so insuring, and the effect of such fact has constantly been matter of dispute. And I have dwelt on this the more, because I observe, in the court below, the argument was mainly rested on the ground that such an agreement was to be implied, which I think it cannot be, for the reasons given. There being, then, no actual or implied agreement between the two sets of insurers, what, in point of law, is the effect of the contract into which they have respectively entered? And, I say the two sets of insurers; because it is not necessary to consider the consequence of a separate insurance and abandonment of freight between the insurers on freight and the assured, under all circumstances that might possibly arise on the contract directly made between them. Confining, therefore, the consideration, in the manner stated, what is the legal operation of the respective contracts? And, in resolving this question, I put no stress upon the fact, that freight passes under a general assignment of ship; because, it appears to me that this is begging the question, the question arising on a supposed distinction resting upon abandonment as different from common transfer. The effect of it, correctly considered, is only to remit the question to the general operation of law, supposing the distinction contended for to fail. Nor do I place reliance on the assignee of the ship becoming the owner of her in a common case; for here, again, the question turns upon the asserted distinction. Neither do I give weight to the mere fact of separate insurances; for this, also, would be to take the point for granted; |