The policy was declared to be on goods, specie, or bullion, as interest might appear: to pay average on each species of goods by following landing numbers of the value of £100 each, as if separately insured. Cocoa and hides, free of particular average, unless the ship were stranded: in case of average on the hides, the assurers were to pay the expense of washing and drying in full.
Under this policy the Plaintiff, on the 6th of May 1831, caused to be shipped on board the ship Roxalane, at Valparaiso, for Bordeaux, in France, 1000 salted hides, of the value of £1117, his property, which hides were intended to be insured by the said policy, and were duly declared thereupon, and a bill of lading duly signed by the captain in the ordinary form.
On the 13th of May 1831, the said ship being seaworthy, with the said 1000 hides, and other hides on board thereof, set sail from Valparaiso aforesaid, on her said voyage towards Bordeaux. On the 5th of June 1831, in the course of her said voyage, the said ship, with the said goods on board thereof, encountered bad weather and sprung a leak, and it thereby became necessary, for the safety of the ship and cargo, that the said ship should put into a port for repair, and the said ship did accordingly put into Rio de Janeiro, in Brazil, being the nearest port, for repair. On the 7th of July [268] 1831, the whole of her cargo was there landed; and it was then found, that the said hides were damaged by the said perils and dangers of the seas, as follows; that is to say, that they had been washed or wetted by the sea-water which had entered into the vessel through the said leak, and also by the effect of the dampness produced in the hold by the leak, and in consequence thereof a partial fermentation ensued, the progress of which could not be stopped by any means practicable in Rio de Janeiro; and, in consequence of the progressive putrefaction of £he said 1000 hides, it was impossible to carry them, or any part thereof, in a saleable state to the termination of the voyage for which they were insured: if it had been attempted to take them to Bordeaux, they would, by reason of such progressive putrefaction as aforesaid, have altogether have lost the character of hides before they arrived there. On the 27th of August 1831, at Rio de Janeiro, the said 1000 hides in the said policy mentioned, according to the ordinances of the French consul-general there, were sold, by public auction, for the gross sum of £273: the same were bought by the purchasers for the purpose of being tanned, and were tanned accordingly. The ship Roxalane being repaired, and the leak stopped which was in her bottom, she, on the 3d of October 1831, sailed from Rio de Janeiro without the said hides in the said policy mentioned, but with such part of her cargo reloaded on board as had not been sold; and in the course of her voyage from Rio de Janeiro to Bordeaux, was stranded at the entrance of the river Garonne, on the 29th of December 1831. The earliest intelligence of the damage, and of the sale of the said 1000 hides, was received at the same time by Messrs Devaux and Company, the agents for the said Plaintiff, by a letter from Bordeaux.
The Court of Common Pleas, after two arguments [269] having given judgment for the Defendant (a), the cause was removed by error into the Exchequer Chamber, where it was argued in Easter vacation 1836, by Maule for the Plaintiff and the Attorney-General for the Defendant.