MMmj 
 
 OPINION AND AWARD 
 
 W. H, KERR, ESQ,, Q. C, 
 
 '■■■'a . , . '' 
 WITH RESPECT TO CLAIMS BETWEEN 
 
 N. KENNEDY, E. B. MORGAN & CO., A. W. AIKINS, 
 
 AND THE 
 
 PROVIDENCE WASHINGTON INSURANCE CO. 
 
 Arising out of the loss of the S.S. Viking, Sept., 1883, 
 Submitted to him for arbitration. 
 
 MONTREAL, 1888. 
 
 ' \ * - •, i 9 «».■ .... 
 
 
V 
 
 J 
 
 • •• • 4 • 
 
 
 • • < • •• 
 
 
THE CATTLE TRADE. 
 
 IMPORTANT MARINE INSURANCE DECISION. 
 
 In September, 1883, the steamship Viking 
 was lost ofif Aiiticosti, having on board a 
 large number of cattle "ind sheep, the pro- 
 perty of Messrs. E. B. Morgan & Co., N. Ken- 
 nedy, Robt. Craig (of Brampton), and A. W. 
 Aikens, of Toronto, insured in the Providence 
 Washington Insurance Cci. The matter was 
 referred to W. H. Kerr, Esq., Q.C. as arbitra- 
 tor, who has rendered the following dec ion, 
 which, in view of the great importance of 
 the case, it is now printed in full. 
 
 Before W. K. 
 
 Keuk, Q.C, Arbitrator and 
 Meditat(}r. 
 
 E. B. Morgan, et al., claimants, vs. The 
 Ppoviuenoe Washington Insurance Company. 
 
 Opinion ot Arbitrator and Meditator : — 
 On the 30th August, 1883, the steamship 
 Viking, laden with a cargo of goods, 3 
 horses, 270 cattle, and 900 sheep, left Mont- 
 real for London, England. On the 2nd Sep- 
 tember the Viking ran on a reef about I mile 
 off Shallop Creek, Anticosti, in the gulf of 
 St. Lawrence, and became a total wreck. 
 She was then abandoned by her officers, crew, 
 and parties in charge of cattle, who took 
 refuge on Anticosti. Certain of the sheep 
 and cattle were drowned or died of exposure 
 previous to the evening of the 7th September, 
 when the horses ami 205 sheep were taken on 
 board the steamship La Canadienue, which 
 left Anticosti on the 8th September, at 8.15 
 a.m., and carried to Gaspe. On Monday, 
 10th September, at 8.30 a.m., La Cana- 
 dienue having been tmgaged by a Capt«in 
 Taylor to proceed to the wreck of the 
 Viking for purposes of salvage, arrived, 
 made fast thereto, and took on board 
 4G oxen and 24G sheep, and in the 
 evening left for Gaspe, arriving there at 5.30 
 a.m. on the 11th. She returned to the wreck 
 
 at 5.40 p.m. of the same day, and took off 72 
 cattle, 50 sheep and some cheese, Ac, and 
 Inft at midnight for Gdspe. The cattle by 
 this time were very weak. Six died of ex- 
 haustion on this passage. She arrived at 
 Gaspe on the 12tb, left tlie cattle and sheep 
 and returned to the wreck at 11.30 p.m. of 
 that day. On the 13th she took on board the 
 balance of the cheese, all the sheep and cattle 
 alive and left for Gaspe. On her way she 
 overtook the Florence, a schooner, with 
 auxili.try steam-power, with cattle and sheep 
 from the wreck, and towed her into Gaspe. 
 The cattle OH board the Florence were very 
 weak, and several had died after she left the 
 wreck at 11 p.m. on the 12th. In all, it 
 would appear that there were carried to 
 Gaspe 154 cattle, 588 sheep and 3 horses. 
 Some cattle, 10 or 11 in number, were landed 
 or got on shore at Anticosti. The sheep 
 taken to Gaspe on the 7th September were 
 sold by the order of the Keceiver of Wrecks 
 on the 26th October, 1883, and realized, net 
 expenses being deducted, $54. G3, which re- 
 mained in Dr. Wakeham's hands as r(;pre- 
 senting the Receiver of Wrecks. The cattle 
 and sheep taken by Taylor from the wreck, 
 amongst which were those brought over by 
 the Florence, which had been chartered by 
 him, were attached by him in the Vice-Ad- 
 miralty court (Quebec) for salvage, and were 
 sold under the order ot that court 
 as being perishable and in a dete- 
 riorating condition ; but the whole of 
 the proceeds were swallowed up in costs and 
 charges, as allowed by the Vice-Admiralty 
 court. (All this appears by exhibits C and 
 D). The owners of the sheep never regained 
 possession of any them after the wreck and 
 never received any portion of their proceeds. 
 It was impossible to identify any of the sheep 
 or cattle saved as belonging to any of the 
 ■hippers. 
 
CLAIM OF THE CLAIMANTif. 
 
 That claimants were owners and shippers 
 of 70 1 of the sheep HO shipped onboard the 
 Viking ; that on the 30th August, 1883, they 
 insured with the Providence Washington 
 Insurance company the said 701 sheep at $2 
 each ''against total loss of vessel and ani- 
 mals in consequence thereof (in this event), 
 each animal considered a separate insurance, 
 but this company to be liable for its propor- 
 tion of the assured assessment in general 
 average, levied upon interest. * » « » « 
 Loss, if any, payable to insured or order 
 herein, upon return of this certificate," the 
 whole under and subject to the conditions of 
 open policy. No. 20,853, held by Messrs. 
 Gault & Hubbard. This certificate was 
 Biuaed by Gault & Hubbard, who acted as 
 agents of the Providence Washington Insur- 
 ance company at Montreal, in accepting 
 risks, and in communicating to the company 
 all inlormation relative to the risks taken by 
 them. (The said certificate and a copy of the 
 open policy are produced as exhibits.) 
 That, in consequence of the said wreck, they 
 suffered an absolute total loss of all the sheep 
 insured. That, on receiving news of the 
 wreck, they abandoned to the company, for 
 a claim of total loss upon all the sheep. 
 
 company's defbnck. 
 
 Denies the allegations of said claim. That, 
 by the certificate of insurance, they insured 
 701 sheep, on board of the Viking, subject to 
 the condition in the open policy, No. 20,853, 
 issued to Gault and Hubbard, raaRing loss 
 payable sixty days after receipt of proof of 
 loss and adjustment at their office, and no 
 proof of loss or adjustment, in accordance 
 with that condition, was ever made. That 
 no abandonment, or notice of abandonment, 
 was ever given, verbally or otherwise, or 
 could be so made or given except to the said 
 company. That Gault and Hubbard had no 
 authority to waive any condition of the policy 
 or to accept abandonment, and never did so. 
 That there was no total, or constructive 
 total, loss of the said animals, landed at An- 
 ticosti and Gaspc ; but there were several 
 landed, and could have been reshipped from 
 Gaspe. That the company could only be 
 liable for the amount insured upon animals 
 actually drowned or lost, and for assessment 
 on general average, which they were always 
 ready and willing to pay on adjustment 
 
 the instance of Taylor was illegal, and would 
 have been quashed, and the same prevented, 
 had the insured not made default and failed 
 to contest. 
 
 It is shown by the evidence of the case 
 that a couple of days after the news 
 arrived in Montreal, one of the claimants, W. 
 W. Craig, went with Andrew W. Aitkins to 
 the office of Gault and Hubbard, when Craig 
 said he would not look after the sheep, would 
 have nothing to do with them, demanded his 
 money, and threatened to sue. Gault and 
 Hubbard asked him not to sue, and said they 
 would forward what he had said to the head 
 office. D. M. Craig went to Gault and Hub- 
 bard's office with W. W. Craig within a 
 week from the wreck, and W. VV. Craig then 
 said, in his presence, that he abandoned the 
 sheep ; the only reason given by Gault and 
 Hubbard for not paying, in the hearing of 
 this witness, was that the sixty days to pay 
 had not expired. Communications between 
 the claimants and Messrs. Gault and Hub- 
 bard continued, and communications were 
 had between Gault and Hubbard and the 
 company fur many months, but nothing more 
 than mere verbal statements, as to loss and 
 proof of interest, were ever made in this case 
 by the claimants previous to the arbitration, 
 neither was the bill of lading ever produced, nor 
 anyinvoices.From the correspondence between 
 Messrs. Gault and Hubbard and the company, 
 it would appear that whilst the company in- 
 sisted upon proof of loss as stipulated in 
 Gault & Hubbard's open policy, they admit- 
 ted their liability for some amount, namely, 
 $2 per head, of the sheep actually lost, ex- 
 cluding those landed at Gaspe, but denied 
 that they were liable for either an absolute or 
 total constructive loss of the sheep. No de- 
 mand was ever made by the company upon 
 the claimants to prove their interest ; that 
 seemed to be taken for granted. On the ar- 
 bitration, a paper purporting to bo a copy of 
 the bill of lading was produced, dated 30th 
 August, 1883, signed by Robert Keford and 
 company, agents (of the SS. Viking), for 700 
 sheep, shipped on that day, by E. B. Morgan 
 and company, on a voyage to London on the 
 SS. Viking, and Mr. Robert Reford sweara 
 he knew the shipper of the cattle and sheep, 
 and they, the sheep, etc., were on board the 
 Viking when the ship sailed. 
 
 In this case I act as mediator as well as 
 arbitrator, and I have no doubt that 700 
 sheep were shipped by the claimants on 
 
 That the seizure by the Court of Admiralty at board the Viking, and that they were insured 
 
by the certificate, exhibit A, with the said 
 company. I am dear, also, that the steam- 
 ship Viking was totally lost on the voyaere 
 in question ; that certain of the claimants' 
 sheep were drowned at the time when the 
 ship was on the rocks, ere La Canadienne 
 took any of them off, and I am clear, also, 
 that although out of the 589 sheep, landed 
 at Gaspe, a large number must have belonged 
 to the claimants, yet owing to the proceed- 
 inge taken by the salvors, none of the 
 said sheep ever came into the claimants' pos- 
 session, nor did they ever receive any of the 
 proceeds of their sale. Having thus disposed 
 of the facts regarding ownership, insurance, 
 wreck and loss of the sheep insured, it be- 
 comes necessary to inquire : 
 
 1st. Whether the condition of the open 
 policy No. 20,85a couched in the following 
 words, has been complied with by the claim- 
 ants, "And in case of loss, such loss shall 
 be paid in 60 days after receipt at the office 
 of the company, of satisfactory proof and 
 adjustment thereof. ' ' 
 
 2nd. Can the loss in this case be considered 
 an absolute total loss ? 
 
 3rd. If not an absolute tottil loss, was an 
 abandonment made by the claimants to the 
 company of the sheep insured ? 
 
 WITH RESPECT TO THE FIRST QUESTION. 
 
 In English marine policies, in the common 
 form, there is no condition as to preliminary 
 proof of a loss. It is what may be called an 
 Ameri(;an condition apparent in all marine 
 policies isMied by United States marine in- 
 surance companies. 
 
 2 PHILLIPS, NO. 1800. 
 
 Mr. Phillips says : "The clause requires 
 only reasonable information to be given to the 
 underwriters, so that they may be able to 
 form some estimate of their rights before they 
 are obliged to pay. It is con^trued to require 
 only general evidence as a ground of reason- 
 able presumpture of tlie loss as distinguished 
 from a specific statement of it." In the case 
 of Mussen v.s. New England Marine Insurance 
 company, 4 Mass. 88, where the captain had 
 been made prisoner, and tlie assured being in- 
 formed of the loss by tlie pilot, communi- 
 cated his information to the underwriters, 
 Mr. Chief Justice Parsons for the court said : 
 ••The evidence of the loss was sufficient. 
 Nothing can be objected, but the want of 
 
 affidavit, which it is not usual to send. The 
 master was a prisoner and could make no 
 protest, which is the usual evidence. 2 Phil- 
 lip, No. 1801, and author, cited. Mr. Phillip 
 also says : " It depends upon the provisions 
 of the policy and also in some degree upon the 
 demand made by the insurers whether the pro- 
 duction of any particular document is neces- 
 sary. In this case no demand was made upon 
 the claimants, save as to specification of where 
 their sheep were penned on the "Viking," 
 and the ground wliereon the company refused 
 to pay, was that they were not liable to the 
 claimants for a total loss of all the sheep in- 
 sured, but only for the amount insured, $2 
 per head on those actually drowned. This 
 course of proceeding I regard as a waiver 
 of the preliminary proof provided for by 
 the opt^n policy with respect to loss and inter- 
 est not specially demanded — 2 Phillipx No. 
 1803. Thespecificationof place in SS. Viking 
 of the pens wherein claimants' sheep were 
 placed, the claimants apparently were un- 
 able to furnish, and the conclusion at whicn 
 I have arrived on the 2nd and 3rd questions 
 render such specification of no moment. 
 With respect to the second question, the 
 answer depends whether the claimants were 
 justified in claiming for an absolute total 
 loss of thd whole of the sheep, although some 
 of the sheep were rescued from the wreck 
 and taken over to G.ispe. It must be remem- 
 bered that the sheep so transported to Gaspe 
 were taken by strangers, and that from the 
 moment ot their leaving the wreck, the claim- 
 ants never regained possession of them ; that 
 they were afterwards sold under the orders of 
 the Vice-Admiralty Court and of the receiver 
 of wrecks, and that the net proceeds were of 
 the smallest dimension, and were never re- 
 ceived by claimants. I am clearly of opinion, 
 from the evidence given, that animals on 
 board a vessel cast away off Anticosti may as 
 a rule be looked upon as an absolute total 
 loss, the chances of any being saved from the 
 wreck being almost infinitisimal. Even if 
 saved and landed at Gaspe, the expense at- 
 tendant upon the maintaining and for- 
 warding them to their destination, 
 had they been in the hands of the 
 claimants, would have far exceeded the price 
 they would have realized. But in this case, 
 the facts proved and admitted, show con- 
 clusively that a total loss has taken place be- 
 for the termination of the risk insured with a 
 salvage of some portions of the subject in- 
 sured, which have been converted into money. 
 
None of the portions of the subject so insured 
 or the Dioney into wiiicii they hiive been con- 
 verted coming into the hands of the claim- 
 ants an«l tlie (juf-stion tlien reduces itself to 
 tliis : "Is the insured bound to abandk.ii be- 
 fore h(! can recover for a total loss ?" 
 
 The case of Uoux vs. Salvador is still the 
 leading case upon the subject; as laid down by 
 Lord Abinger, C.B. The main question to be 
 decided in that case was, " whether, when a 
 total loss has taken place before the termina- 
 tion of tlic risk insured, with a salvage of 
 some porlion of the subject iuhured which iias 
 been converted into moiu;y, the insured is 
 bound to abandon before he can recover for a 
 total loss " In that case hides were insured 
 from Valparaiso to Bordeaux, free of par- 
 ticidar average, unless the ship were 
 stranded. Arriving at Uio Janeiro, on their 
 way to Bordeaux, in a state of incipient 
 putrefaction, occasioned by a leak in the ship, 
 were sold for a fourth of their value 
 at llio, because by the process of 
 putrefaction, they would have been 
 destroyed before they could have arrived at 
 Bordeaux. The assured receivctl the news 
 of the damage to the hides and of their sale 
 at the same time, and it was held that they 
 might recover as far a total loss without aban- 
 donment. Lord Abuiger, in giving his judg- 
 ment, mafie use of the following remarks : — 
 " Dismissing this distinction then, the argu- 
 ment rests upon the position that if, at the 
 termination of the risk, the goods remain in 
 specie, however damaged, there is not a total 
 loss. Now the position may be just if by the 
 termination of the risk is meant the arrival 
 of the goods at their jdace of destination ac- 
 cording to the terms of the policy. But there 
 is a fallacy in applying these words to the 
 termination t.f the adventure before that 
 period by :;■ peril of the sea. The object of 
 the policy is to obtain an indemnity for any 
 loss th it the assured may sustain by the 
 goods being |uevented, by the perils of the 
 sea, from arriving m safety at the port of 
 their destination. If by reason of the perils 
 insured against the goods do not so arrive, 
 the risk may in one sense be said to have ter- 
 minated at the moment when the goods are 
 finally se|)arated from the vessel, whether 
 upon such an (ivent the loss is total or par- 
 tial, no doubt depends upon circumstances. 
 But the existence of the goods, or any part of 
 them, in specie is neither a conclusive, nor, 
 in many cases, a material circumstance to 
 that question. If the goods are of an im- 
 
 perishable nature, if the assured be-d 
 come possessed or can have the control h 
 of them, if they have still an opportunity b 
 of sending them to their destination, the a 
 mere retardation of their arrival at their a 
 original part may be of no prejudice to them a 
 beyond the expense of reshipment in anothei u 
 vessel. In such a case the loss can be but a c 
 partial loss, and must be so deemed even b 
 though the assured should, for some real or f 
 supposed advantage to themselves, elect to t 
 sell the goods where they have been landed, h 
 instead of taking measures to transmit them p 
 to their original de.stination. But if the i 
 goods once damaged by the perils of the sea, c 
 and necessarily landed before the termination c 
 of the voyage, are by reason of that damage 1 
 in such a state, though the species be not ut- t 
 terly destroyed, that they cannot with safety i 
 be reshipped into the same or any other i 
 vessel, if it be certain that, before the ter- i 
 mination of the original v'.>yage, the species i 
 itself would disappear, and the goods assume 1 
 a new form, losing all thoir original character, 1 
 if though, imperishable, they are in the hands ] 
 of strangers not under the control of the as. < 
 sured, if, by any circumstances over which i 
 he has no control, they can never or within ( 
 no assignable period be brought to their ( 
 original destination, in any of these cases the 
 circumstances of their existing in specie at 
 that forced termination of the risk is of im- 
 portance. The loss is in its nature total to 
 him who has no means of recovering his 
 goods, whether his inability arises from 
 their annihilation or from any other 
 insuperable obstacle." 
 
 Accordingly in the case of Hunt and 
 others vs. The Royal Exchange Assurance 
 (5 M. & S., 47), which was cited by the 
 Attorney-Qeueral in support of his argu- 
 ment, the judgment of Lord Ellenborough 
 contains a very important passage, which 
 distinguishes it from the present case. He 
 says : "If, indeed, the cargo had been 
 of a perishable nature, this would not have 
 been a case of retardation only, but of 
 destruction of the thing assured" ; and, fur- 
 ther, he says : "I cannot necessarily infer 
 that the flour would be changed in quality 
 and condition by the delay from November to 
 April, so as to incur any material damage 
 operating a destruction of the thini; insured." 
 In the case of Anderson vs. Wallis (2 M. & 
 S., 240), which was also relied upon, the 
 goods consisted of copper, which was wholly 
 uninjured, and of iron, which was partially 
 
-damaged. The assured, by their own agent, 
 I had i)OKbi'fi6ion of them ; the ship was eivpa- 
 ble of repair, and migiit have prosecuted, 
 'and did, in four weeks after the accident, sail 
 rapon another voyage. Tlie only pretence for 
 1 a total loss was the retardation of the voyage, 
 up(m which ground, combined with the other 
 I circumstance?, the court held tlie loss not to 
 I bv: total. In the case before us, the jiuy have 
 found that the hides were so far damaged by 
 the perils of the sea that they never could 
 have arrived in the form of biiles. By the 
 process of fermentation an<l putrefaction 
 which had commenced, a total destruction 
 of them before tlieir arrival at the port 
 of destruction became as inevitable as if they 
 had been cast into the sea or consumed by 
 fire. Their destruction not being consum- 
 mated at the time they were taken out ot the 
 ve.ssel, they became in that state a salvage 
 for the benefit of the party who was to sus- 
 tain the loss, and were accordingly sold, and 
 the facts of the loss and sak; were made 
 know at the same time to the assured. 
 Neither he nor the underwriters could at that 
 time exercise any control over them or by 
 any interference alter the conseq\iences. It 
 appears to us, therefore, that this was not the 
 case of what has been called a constructive 
 Joss, but of an absolute total loss of the 
 goods. They would never arrive, and at the 
 same moment when the intelligenc« of the 
 loss arrived u\\ speculation was at an end. J It 
 has, indeed, been strenuously contended be- 
 fore us that the sale of the hides whilst they 
 remained in specie rendered abandonment 
 necessary to make the less total ; that the 
 money produced at the sale became vested in 
 the assured •, that he had an undoubted right 
 to keep it if he thought proper, and to treat 
 the loss as partial, and that whenever it is in 
 his power to treat the loss as partial an 
 abandonment is necessary to make it a total 
 loss. The assured certainly has always an 
 option to claim or not, but his abstaining 
 frwm his right does not alter the nature of it ; 
 and if it be true that the proceeds of the sale 
 vested in him, they would equally haA'e done 
 so, if, instead of being sold in specie, the 
 hides had actually cKanged their form and 
 been sold as glue, or manure, or ashes. The 
 argument, therefore, in effect resolves itself 
 into this question : whether, when a total 
 loss has taken place before the termination of 
 the risk insured, with a salvage of some por- 
 tion ot the subject insured, which has been 
 converted into money, the insured is bound 
 
 to abandon before he can recover for a total 
 loss. If any doubt should still exist upon this 
 point, it is important that it should 
 be well considered and determined." 
 In the case of Stringer vs. Kngland and 
 Scotland Marine Insurance Company, L.U. 
 ■> Q.B , p. r)0',i, where, during the war 
 between the United States and Confederate 
 States, goods insured against takings at sea 
 on board a ship captured by a cruiser of the 
 United States, were libelled in a Prize court 
 of the United States for the piirpose of hav- 
 ing them adjudged lawful prize as contriband, 
 and were sold under an order of the court, 
 the owner not having given security as per- 
 ishable goods, it would seem from the dicfa 
 of the judges that although the owners had 
 first elected to treat the loss as partial, yet 
 that the sale under order of the court de- 
 prived the owners ©f the property in the 
 goods and took them entirely out of his do- 
 minion and control, and, " in my judgment" 
 said Martin P>, "after that event took place 
 the word 'abandonment,' in the sense in 
 which I have used the word with regard to 
 what took place anterior to this, does not 
 apply at all," and Channel! B. said, '-'I am 
 of the same opinion. I do not think it 
 necessary to add anythiNg to what the Lord 
 Chief Baron and my brother Martin have 
 said, but I wish to state that my opinion is 
 foimded on the ground that the sale of the 
 cargo by order of the Prize court, gave the 
 plaintiffs the right to maintain aa 
 action on the policy for a total 
 loss." 
 
 Mr. Phillips, in his treatise on insur- 
 ance No. 1497 thus expresses himself : "The 
 doctrine on the subject is the same in 
 respect of ship or goods ; if either subject is 
 so damaged by the perils insured against as 
 not to remain in specie, or so as to be in a 
 condition rendering a sale necessary and the 
 sale is made in such a manner as to render it 
 binding upon the owner and underwriters, it 
 is a total loss and may be recovered without 
 abandonment." That a total loss is unques- 
 tionably recoverable without abandonment, 
 in case of sale authorized by necessity, when 
 there is no question, which of the parties is 
 responsible for the acts or neglects of agents, 
 has been held in divers cases. 
 
 The pr»of in this case shows : 
 
 Ist. The loss of the Viking. 
 2nd. The loss of certain of the sheep in- 
 sured drowned. 
 
6 
 
 3rd. The reRcuo by Htran^ers of 588 Hheep 
 out of 900 on board, whereof 500 iHslonged to 
 claitnantH and were insured with the Provi- 
 dence Washington Insurance company at $'2 
 each. 
 
 4th. Tlie siile by order of the Urtceivor of 
 Wrecks of 200 of the said sheep, .saved by 
 La Canadienne, as being analogous to 
 perishable goods, in October, 1883. 
 
 5th. Tiie sale of ;^88 sheep under order 
 ot the Vice-Admiralty court at Quebec as 
 being in a perishable condition on the 
 25th October, 1885, on suit of salvor Taylor. 
 Both these sales were made in such a mann-r 
 as to be binding upon the owners and under- 
 writers. 
 
 6th. The absorption of the whole of 
 the of the proceeds arising from the said sales 
 of the said sheep by the costs and charges of 
 the salvage, the feed and care of the sheep 
 after being landed in Gaspe, and the costs of 
 court in the suit for salvage, save an amount 
 of $64. 03 or thbreabouts, proportion of pro- 
 ceeds of slieep in Dr. Wakeham's hands, as 
 appears by exhibits C, D. and H. 
 
 That live stock of any kind must be classed 
 with perishable property is, I think, clear, 
 requiring not only care but also food and water 
 Any retardation in a voyage, not only tends to 
 produce deterioration in the animals, but also 
 necessitates supplying them with food, water 
 and attendance, the cost of which in a very 
 short time would make them cos^ more than 
 they were originally worth. It may be pre- 
 tended that it was the duty of the claimants 
 to have given security and obtained the 
 sheep, but I am of opinion that regarding the 
 distance of Gaspe from Montreal, the action 
 of the salvors and the results of the suit, it 
 would not have been the act of prudent raeu 
 had they attempted to regain possession of 
 their sheep by giving security, nor would 
 they have been justitied in contesting tiie 
 claim for salvage. I am, therefore, 
 of opinion on this point that the 
 claimants are justified in claiming 
 for a total loss without abandonment. 
 With reference to the third point ; Even if 
 abandonment were necessary, I am of opin- 
 ion that a valid abandonment was made. 
 The abandonment need not be in writing. 
 (The Western Insurance Company v. Pearson, 
 Q.B., Montreal, 1877.) 
 
 In the present case it is shown that in con- 
 versation with Messrs. Gault & Hubbard the 
 whole of the facts and circumstances connected 
 with the loss of the vessel and the state of the 
 
 cargo, as far as the claimants could give 
 them, were communicated to Messrs. Gault & 
 Hubbard, who were the agents of the com- 
 pany at Montreal, and ont* of the claimants 
 within a week of the^disaster abandoned the 
 sheep and claimed for a total loss. That this 
 is the case is shown bv Gault & Hubbard's 
 letters of 7th November, 11th December, 
 1883, and 2nd January, 1884, to the com- 
 pany, and letter from the company of 17th 
 December, 187.'?, to Gault & Hubbard. The 
 whole difhculty between the compai' lud 
 the claimants appears to have been that the 
 company pretended there was only a loss of 
 the sheep actually drowned, whilst the 
 claimants insisted upon payment notoHly for 
 those drowned but also for those saved and 
 landed at Gaspe, claiming for the latter as 
 subjects of a total loss. I am therefore of 
 opinion that if an abandonment were nei;es- 
 sary it was made. In conclusion, I hold that 
 the claimants are entitled to recover from the 
 Provident, Washington Insurance -^'^mpany 
 the sum of $1,400, value of 700 sheep, in- 
 sured at $2 per head, with costs, and I give 
 my award accordingly. 
 
 THE A. W. AIKINS' CASE. 
 
 The facts are the same as in E. B. Morgan 
 and company's case, save that the bill of 
 lading is in favor of A. W. Aikins and com- 
 pany ; the insurance receipt is in A. W. 
 Aikens' name, and it is sworn to that the bill 
 of lading was endorsed to him. The certifi- 
 cate is No. 710 ; the insurance is on 54 cattle 
 at $25 a head. The cattle landed in Gaspe 
 were all sold under the order of the Vice- 
 Admiralty court. Some ten or twelve of the 
 270 cattle on board the Viking got on shore 
 at Anticosti and no one seems to know what 
 became of them. The proceeds of the cattle 
 sold under the Vice-Admiralty order were all 
 absorbed by expenses of maintenance, salvage 
 and costs. The decree awarding salvage 
 was pronounced in the Vice-Admiralty 
 court on 24th June, 1884. The report of 
 registrar distributing proceeds was made on 
 2nd July, 1884, confirmed 8th July. A 
 served report was made on 2nd Septem- 
 ber, 1884, confirmed on 9th Septem- 
 ber. The company was aware of the 
 proceedings for salvage and might, had they 
 chosen, have intervened in the action. Apar- 
 from these facts, preliminary proofs were put 
 in by Aikens and acknowledged by the comt 
 pany after making his claim, as appears by the 
 
company's letter of '2 1 st January, 1884, and 
 Hth February, and tlie only further informa- 
 tion asked, was as to the brands, if any, of 
 the cattle and the part of the vessel in which 
 they were shipped, as appears from Hubbard's 
 testimony : ~Q. After receipt of letters from 
 the heail office asking you for further proofs 
 in the case of Mr. Aikins and the other claim- 
 ants, did you ask these clafmants to furnish 
 you with other particulars? A. I did. Q. 
 Did they ever furnish you with them? A. 
 No, they never did. Q- Were you able to 
 ascertain from the clasmants in question, or 
 any one on their behalf, the position the 
 cattle were placed in on board the ftiiking :' 
 A. I have tried very hard to find this out, 
 but we were never able to ascertain from the 
 claimants wViere tlie cattle had been placed. 
 Q. You were particularly desirous of obtaining 
 this information ? A. Yes. Q. Your object 
 was to enable you, if possible, to arrive at some 
 definite conclusion as to who were entitled 
 to receive payment for cattle absolutely lost ? 
 A. Yes. Q. You asked the claimants to fur- 
 nish you with such information? A. Re- 
 peatedly. 
 
 Vide p. 10, as to admission of lia- 
 bility. I therefore come to the conclu- 
 sion on the whole of the facts and evi- 
 dence, that the claimant is entitled to recover 
 from the Providence Washington Insurance 
 company $1,350, amount of insurance on ,54 
 head of cattle, shipped on board the Viking 
 in August, 1883, and I award that the Pro- 
 vidence Washington Insurance company do 
 pay that sum to the said claimant with cos(s. 
 
 THE CLAIM OF N. KENNEDY. 
 
 The facts connected with the wreck of the 
 Vilslng are Ihc same in this case as the two 
 other cases, but a further complication arises 
 from the facts — 
 
 1st. That whilst the certificate of 
 insurance, No. 707, issued by Gault and 
 Huiibard, as agents for the company, is 
 in favor of N. Kennedy on 156 cattle at $25 
 each, the bill of lading granted for those 156 
 
 cattle by the agents, R. Ileford & Company, 
 is in the name of E. B. Morgan & Company, 
 as shippers theicof, and is dated 3l8t August, 
 1883. 
 
 2nd. It is shown by the evidence of 
 W. W. Craig that Kennedy was not the sole 
 owner of the said cattle, he having merely a 
 joint interest therein with Mr. Robert Craig, 
 of Brampton. 
 
 3rd. Tliat a claim was fyled by the Dominion 
 Bank as holders of the insurance certificate. 
 
 With respect to the first point . It is shewn 
 by the evidence of W. W. Craig, that E. B. 
 Morgan & Co. in shipping the cattle, did so 
 as the agents and at the reipiest of N. Ken- 
 nedy, the cattle being the properly on joint 
 account of Kennedy and Robert Craig, of 
 Brampton. With respect to the second 
 point : The cattle evidently were of greater 
 value than $25 each, being worth at all 
 events .$125, Kennedy being a joint owner, 
 had a right to insure his share. I Phillips, 
 No. 208. MiUowlire vs. Ailaiitic Insurance 
 Compani/, 8 La., 357. May on Insurance, No. 
 !)'.). With reference to the third point ; The 
 Dominion Bank must in this case, in my 
 opinion, be looked upon merely as the agent 
 of Kennedy, in putting in the claim, Ken- 
 nedy had the interest at the time of the ship- 
 ment and at all the time of the loss, and is 
 iK>w and has been for some time past the 
 holder of the certificate, on the fJace of which, 
 the loss insured against, is payable to claim- 
 ant or his order. Moreover no action could 
 now he taken against the company, in the 
 name of the bank, more than a year having 
 elapsed from the date of the loss. Taking 
 all these facts into consideration, with the 
 waiver of the company and its declared 
 readiness to .settle with all the claimants for 
 the cattle actually drowned, I am of opinion 
 that the claimant should succeed. I there- 
 fore award him $3,900 and costs. 
 
 W. H. KERR. 
 
 Montreal, 20th May, 1885. 
 
 lohn S. Hall, Jr., for claimants. J. C. 
 Hatton, for the Providence Washington lu- 
 surance Company. 
 
 
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