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![handle is hein.slavery/ssactsengr0286 and id is 1 raw text is: TOBIN V. HARFORD
obstructions upon the hard ? It was abundantly proved that the plaintiffs' vessel was
by the [790] acts of the defendants prevented from being navigated as they were
entitled to navigate it. Upon all the other points I entirely agree with what has
fallen from my Lord.
WILLES, J. I am of the same opinion. The second count is disposed of by the
remarks already made. The first count is founded upon an injury sustained by the
plaintiffs in consequence of an obstruction placed by the defendants in the bed of
the river. I think both the board of works and the contractor are liable upon that
count, if the obstruction complained of was an unlawful act. The proper way of
dealing with this question is, to put the two acts,-18 & 19 Viet. c. 120, and 21 & 22
Vict. c. 104,-together, and to treat the 135th section of the former as if it were
found in an act of which the 2nd section of the latter formed one of the sections.
There would then be a general clause giving the board power to construct their works
in all places within the limits of the metropolis, and then a special clause dealing with
works to be done in the bed or soil of the river Thames: and, of course, in considering
what are the powers conferred upon the board with respect to works to be done in the
bed of the river, regard must be had to the special clause only, and not to the general
provision. Now, the powers conferred by the special clause, the 2nd section of the
21 & 22 Vict. c. 104, are to be exercised only subject to the condition contained in
the 27th section of the same act, viz. that they shall be previously approved of by the
lord high admiral or the commissioners of the admiralty. As that condition was not
complied with here, it stands that the board of works have placed an unauthorized
obstruction in a public navigable river, which is a public nuisance, and consequently
that they are liable to the plaintiffs for [791] the particular damage which they were
proved to have sustained thereby.
KEATING, J. I entirely agree in the construction which my Lord and my two
learned Brothers have put upon the acts of parliament referred to.
Rule discharged.
TOBIN AND ANOTHER V. HARFORD. Feb. 5th, 1863.
[Affirmed in Exchequer Chamber, 17 C. B. N. S. 528. Followed, Denoon v. Itome
and Colonial Assurance Company, 1872, L. R. 7 C. P. 352.]
A policy was effected for twelve months on ship and goods from Liverpool to the
coast of Africa and back, on a barter-voyage. The policy contained a stipulation
that outward cargo should be considered homeward interest twenty-four hours
after arrival at first port or place of trade: and by a memorandum the insurance
was stated to be upon ship valued at 20001., and cargo 80001., with liberty to
increase the valuation of the homeward cargo. The ship sailed to Kinsembo, on
the African coast, and there discharged a third of her cargo, and, after a stay there
of more than twenty-four hours, proceeded towards other ports in order to take in
homeward cargo, and was totally lost, together with the two-thirds of the outward
cargo which remained on board :-Held, that the valuation applied to what was
substantially afull cargo, and not to any quantity of goods substantially less than a
full cargo, and entitled the assured to 80001. in the event of the total loss of a sub-
stantially full cargo, or to an indemnity in case of any partial loss, not in any case
exceeding 80001. ; and that the principle for the valuation of a partial loss was this,
-If the value of the whole of the intended cargo was a datum, the partial loss
would be adjusted to the common proportion; but, where the value of the whole of
the intended cargo could not be ascertained, the proportion which the part lost bore
to the whole could not be known, and the mode of estimating a partial loss under
a valued policy could not be adopted ; and, consequently that, under the circum-
stances, the assured would be entitled to the ordinary indemnity as under an open
policy underwritten for 80001.
This was an action for a total loss upon a policy of insurance for twelve months,
commencing on the day of the vessel's leaving the dock at Liverpool, in port or at sea,
in all places, at all times, and in all services, including the risk of craft, boats, and
cranes, to and from the vessel, upon any kind of goods and merchandizes, and also
upon the body, tackle, apparel, and furniture, &c., of the good ship called the Shark,
13 Q. B. (N. S.) 790.](ViewImageLocal?handle=hein.slavery/ssactsengr0286&div=1&collection=&method=preview&ext=.png&size=3)