C. A. 1903 which renders a person irremovable. In the Court below the question was argued entirely on the character of this institution; in this Court, although that point was also argued, an alternative point was also made as to the character of Coxon's residence CHORLTON in this institution. ORMSKIRK v. UNION. Vaughan I do not think it is necessary for us to define, and I certainly Williams L.J. am not going to try to define exactly, what is or what is not a "hospital" within the meaning of this section; but in my opinion this institution comes within the term "hospital." It is true that it is called a "home," but it is a house in the country where epileptic patients are taken in for the express purpose of obtaining hospital treatment combined with such possibilities of outdoor life as would be calculated to make that treatment more effective. I cannot conceive why such an establishment is not a hospital. I could have understood an argument that no person who is in an institution where he has to pay for his treatment is in a hospital, but it seems to me to be impossible to hold that after Horner v. Lewis. (1) I could also have understood an argument that no one is in an hospital within this section unless he is confined there against his will; but after the decision in St. Olave's Union v. Canterbury Union (2) it is impossible to come to that conclusion. I think, therefore, that the Divisional Court were right in holding that this institution was a "hospital" within the meaning of the proviso in s. 1 of the Poor Removal Act, 1846. Then it was said that, taking the facts of this case, the proper conclusion was that Coxon was not in this institution as a patient to be treated for the disease of epilepsy, but that, being an epileptic person, he found this institution a convenient place of residence. I think that on the facts of this special case it is impossible to come to that conclusion; it appears that he remained there as a patient continuously receiving care and treatment from the date of his admission until January, 1902, when he was discharged as incurable. The appeal fails, and must be dismissed. (1) 67 L. J. (Q.B.) 524. (2) [1897] 1 Q. B. 682. ROMER L.J. I am of the same opinion, and I have nothing to add. STIRLING L.J. I agree. Appeal dismissed. Solicitors: Rowcliffes, Rawle & Co., for Alfred Dickinson, Ormskirk; Gibson & Weldon, for J. H. Wilde, Manchester. C. A. 1903 ORMSKIRK V. CHORLTON W. C. D. [IN THE COURT OF APPEAL.] DE HART v. COMPAÑIA ANONIMA DE SEGUROS "AURORA." Marine Insurance· “General Average payable according to Foreign Statement" — Special Provision in Charterparty as to General Average · Foreign Law. The plaintiff, a shipowner, effected with the defendants, underwriters, a time policy of insurance upon his ship containing the following clause: "General average payable according to foreign statement if so made up." The plaintiff chartered the ship to third persons, and by the terms of the charterparty it was provided that the ship might carry a deckload of timber, and that "in case of average. . . . jettison of deck cargo for the common safety shall be allowable as general average." The ship sailed for Antwerp with a deckload of timber, and in the course of the voyage and during the currency of the policy she suffered damage, so that it became necessary for the common safety, in consequence of perils insured against, to jettison part of the deck cargo. On her arrival at Antwerp an average statement was there made up, and the average adjuster, in accordance with the terms of the charterparty, included the jettison of deck cargo in general average. By the Belgian law, apart from contract, the jettison of deck cargo is not the subject of general average; but that law recognises any special provisions in a charterparty as to what shall be the subject of general average : Held, applying the rule in Harris v. Scaramanga, (1872) L. R. 7 C. P. 481, that as the statement had been made up in good faith and the charterparty imported no terms of a special and unusual character such as could not reasonably have been contemplated by the parties to the policy of insurance, the defendants, the underwriters, were bound by the statement, and were therefore liable to indemnify the plaintiff against the ship's proportion of the loss on the jettison of the deck cargo. Decision of Kennedy J., [1903] 1 K. B. 109, affirmed. APPEAL by the defendants from Kennedy J. (1) The facts are sufficiently stated in the report of the case (1) [1903] 1 K. B. 109. C. A. 1903 July, 21, 23. C. A. 1903 below. They formed the subject of joint admissions of fact made for the purpose of the action only. In the course of the DE HART argument reference was made to certain articles of the Belgian Code of Maritime Commerce, of which the following is a translation: v. COMPAÑIA DE SEGUROS Art. 100: "Failing special agreements between all parties concerned, average losses are settled according to the following regulations." Art. 109: "Goods carried on the ship's upper deck contribute if saved. If they are jettisoned or damaged by jettisoning the owner has no claim to contribution. He can only make use of his rights against the master." Art. 118: "The statement of losses and damages is made up by experts (average staters) in the place where the ship is discharged at the instigation of the commander. The experts are nominated by the Tribunal of Commerce if the discharge takes place in a Belgian port." Art. 119: "The specialists nominated in accordance with the preceding article apportion the losses and damages. The apportionment becomes legally binding on approval by the tribunal." J. A. Hamilton, K.C., and J. R. Atkin, for the defendants, urged the same arguments as in the Court below, and, in addition to the cases there cited, referred to Montgomery & Co. v. Indemnity Mutual Marine Insurance Co. (1) [VAUGHAN WILLIAMS L.J. referred to The Mary Thomas. (2)] Carver, K.C., and De Hart, for the plaintiff, cited Strang, Steel & Co. v. A. Scott & Co. (3) as an authority that deck cargoes were allowed in general average where, as in the present instance, they were permitted according to an established custom of navigation. After reading various passages from the judgments in Harris v. Scaramanga (4) to shew that the defendants were bound by the average statement prepared at Antwerp, they were stopped by the Court. J. R. Atkin, in reply. (1) [1902] 1 K. B. 734. (3) (1889) 14 App. Cas. 601, 609. (4) L. R. 7 C. P. 481. C. A. 1903 DE HART V. COMPAÑIA DE SEGUROS 'AURORA." VAUGHAN WILLIAMS L.J., after stating the facts, proceeded :-Now, Kennedy J. decided in favour of the plaintiffs on the ground that the average statement as made up was in accordance with the Belgian law, because the Belgian law recognises in regard to general average the terms of any special ANONIMA contract of affreightment that the parties may have chosen to make. He also takes notice of another contention that had been made on behalf of the plaintiffs, to the effect that, having regard to the judgment of Bovill C.J. and Keating J. in Harris v. Scaramanga (1), these words in the policy of insurance, "general average payable according to foreign statement if so made up," were words which bound the underwriters, whether the foreign statement was made in accordance with the Belgian law as proved, or whether it was not; but, having noticed it, he says that it is unnecessary for him to decide whether or not that assumption or that statement of law by Bovill C.J. and Keating J. was correctly made or not. That then being the state of things, we have had to consider whether the judgment of Kennedy J. is right. I am not at all prepared to say that his judgment may not be supported upon the ground on which he has himself put it. A passage from the foreign code was read to us, from which it would appear that, according to Belgian law, if there is a special contract as between the parties who are primarily interested in the law of contribution -that is the shipowner and the cargo owner-effect is given to that special bargain in making up the foreign statement; and it is also said, with regard to the particular provision of Belgian law that a deck cargo does not come within the rules as to contribution, that that rule is subject to special agreements of the parties to the contract of affreightment. Speaking for myself, I have some doubt as to whether foreign codes are by themselves admissible as evidence of foreign law. I have always thought that the practice is for the Court not to give effect to a foreign code unless there is a foreign expert present to construe the foreign code and to assist the Court, not so much in construing the code as in arriving at the conclusion of fact at which the English Court has to arrive as to (1) L. R. 7 C. P. 481. C. A. 1903 what is the foreign law, by informing the Court what has been recognised by the law of the foreign country. I do not think that it is part of the duty of English judges to take a foreign code and, unassisted by foreign experts, to construe that foreign ANONIMA code, for that is to make the question of the foreign law a DE HART v. COMPAÑIA DE SEGUROS Vaughan Williams L.J. AURORA." question of law and not a question of fact. I have always understood that it is a question of fact and not of law, and for that, amongst other reasons, I prefer to look and see whether the judgment of Kennedy J. can be supported upon other grounds. Now, in the first place, I am disposed myself to support that judgment upon the law as stated in the judgment of Bovill C.J. and Keating J. in Harris v. Scaramanga. (1) In that case the paragraph in the policy is almost identical with the paragraph here, the words there being, "to pay general average as per foreign statement if so made up." Bovill C.J. says (2): "It seems to me that the general effect of the. memorandum is, to make the underwriters liable as for general average for whatever the owners of the goods might be called upon to pay on that account by the foreign statement of adjustment. This memorandum was probably introduced in order to avoid all questions, not only as to the propriety of particular items being treated as the subjects of general average, but also as to the correctness of the apportionment; and I find it difficult to place any other reasonable construction upon the terms of the policy and memorandum." Then he deals with the question of the law of England and the law of Bremen, and proceeds: "It seems to me, however, that, under the terms of this policy, the underwriters and the assured have both agreed to accept the adjustment and statement of the average-stater in the foreign port, if and when made, as conclusive between them, both in principle and in details, as to the loss which the underwriters are to undertake in respect of general average, subject to the exception of any matters, such as capture or seizure, which are excluded by the express terms of the policy." And then he says (3): "It seems to me that, (1) L. R. 7 C. P. 481. (2) L. R. 7 C. P. at p. 489. (3) L. R. 7 C. P. at p. 490. |