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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Watson and Others v. Clark [1813] UKHL 1_Dow_336 (12 June 1813) URL: http://www.bailii.org/uk/cases/UKHL/1813/1_Dow_336.html Cite as: [1813] UKHL 1_Dow_336 |
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Page: 336↓
(1813) 1 Dow 336
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS During the Session, 1812–13. 53 Geo. III.
FROM SCOTLAND.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION.
No. 31
INSURANCE.
Insurance on the Midsummer Blossom, an old ship, “at and from Honduras to London.” Ship sails on her voyage, and, in a few days after, without adequate cause, becomes so leaky as to compel the Master to return. Vessel strikes on a reef of rocks, and is lost. Decided that she was not sea-worthy at the commencement of the risk.
This was a question of insurance upon the cargo of the ship Midsummer Blossom, of which the Respondent was owner. The vessel was lost in November, 1801, on a voyage from Belize river, in Honduras, to London; and the question was, Whether the ship was or was not sea-worthy at the time when she undertook to perform the voyage
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Action in Admiralty Court.
Nov. 18, 1803. Judge Admiral finds the vessel not sea-worthy at the commencement of the risk.
Court of Session decides in favour of the assured, on ground that there was no evidence that the ship was not sea-worthy.
The underwriters having refused to settle the loss, the owner raised an action against them in the Admiralty Court; and after a variety of proceedings, and the production of several documents in regard to the state of the ship at different times, the Judge Admiral pronounced in favour of the underwriters, “Finding that the ship or vessel in question, the Midsummer Blossom, was not sea-worthy when she sailed from Honduras on the voyage insured, and that therefore the policy was null and void, &c. &c.” This judgment having been brought under review of the Court of Session, in the form of an action of reduction, the Lord Ordinary appointed a special condescendance of the reasons of reduction to be given in. This having been accordingly done, he pronounced an interlocutor in favour of the owner, “ being of opinion that there was no, evidence, express or presumptive, that the vessel in question was not sea-worthy at the commencement of the risk.” The, underwriters reclaimed to the whole Court; but the Court adhered to the Lord Ordinary's interlocutor, and thereupon the underwriters appealed.
It was admitted, “that the vessel had not been thoroughly inspected, and ascertained to be sea-worthy, immediately before sailing on the voyage in which she was lost,” and therefore her sea-worthiness, or the contrary, at that time, could not be directly proved. The case therefore rested upon indirect and presumptive evidence, arising from the
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State of the facts.
Protest of Master, &c. referred to by the Chancellor.
It appeared that the ship was thirty-five years old at the period in question; that she was built in 1766, had been thoroughly repaired in 1781, and received several partial repairs afterwards; one in her hull, immediately previous to her sailing to Honduras. She performed the voyage outward with ease. While in the river Belize, at Honduras, she was struck by lightning, and this destroyed her masts, (which were soon replaced,) but did no injury to the hull: she was then making twelve inches water in twenty-four hours. It was proved that the Respondent had found great difficulty in getting insurances done upon her in London at 25 and 26 guineas per cent., owing to the age of the vessel, combined with the unfavourable season of the year and the length of the voyage. The insurance in question was done at Aberdeen, at 15 guineas per cent. The subsequent facts appear in the following protest of the Master, First and Second Mates, and Carpenter, to which the Chancellor referred in his observations on the case. They stated, “That they sailed in the said ship from Belize river, in Honduras, on Tuesday, the 27th of October, 1801, on a voyage to London, with a cargo of mahogany and logwood, at which time the said ship was, to the best of their knowledge, and as they verily believed, staunch, strong, and fit for the said intended voyage; and at one P. M. came to anchor off Goff's Key.—Wednesday, at day-light, got under way in company with the ship Hope, bound for London, and the ship Nancy, for
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The following letter, from the Captain to the owner, was also referred to by the Chancellor:—
Master's letter to his owner.
“ Honduras, December 9, 1801.
I am sorry to state to you the loss of the Midsummer Blossom. I sailed from here the 27th of October, in company with the ship Hope, Captain Storrow. On the second day after sailing from here, I found the ship made much more water than common, and kept increasing daily. On the 5th of November I encountered a fresh gale, which the ship then made forty-two inches water per hour, so as to keep the pumps constantly going. On the 6th I bore down on the Hope, and informed her our situation; and as all hands declared, that if the ship continued making the same water, they would not be able to keep her free longer than three or four days, so I concluded, and thought it most proper to bear up for the river Belize. I then reckoned in lat. 20° 02′ N. and lon. 85° 07′ by my account. On the 7th made the land; at eight P. M. shortened sail; at twelve A. M. hove to; at one A. M. struck, and ashore under the lee-side of Turneef, where there she remains. St. George's Key bears from her W. b. N. All materials were saved and sold at public vendue;
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also the ship and cargo, for the benefit of all concerned.”
From this state of the facts, two opposite conclusions were drawn by the litigating parties; the underwriters maintaining, that as the vessel had proved to be utterly unfit for the voyage so soon after her sailing, without any adequate cause to produce that unfitness subsequent to the period of her leaving the river Belize, the evident presumption was, that she was not sea-worthy at the commencement of the risk; while the owner contended that the leaky state of the vessel, which forced the Captain to put back, was owing to the tempestuous weather which she encountered subsequent to the time of her sailing from Honduras Bay; and the evidence of the existence of tempestuous weather during the period in question consisted of the above documents, and extracts to the same effect from the log-book.
As to the principles of law applicable to the case, it was maintained, on the part of the Appellants,
Park 220. Marshall 364. Magens II. 90. 140. Emerigon 580. Marshall 364. Le Guidon, &c. &c.
1st, “That in no case ought the loss arising from the inherent inability of the ship to fall upon the insurer;” and “that in every marine contract there was an implied warranty that the ship should be sea-worthy, tight, staunch, and strong, properly manned, sufficiently stored, and fully equal to the necessary fatigue of the particular voyage intended at the date of the policy.”
Marshall 265. Munro v. Vandam. Park 221.267.
2d, That an inherent defect, or want of sea-worthiness, must be presumed from the subsequent failure to perform, unless that failure should be
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Mills v. Roebuck. Park 221.252. Marshall 372. Marshall 386. 273. 366.
Lee v. Beach. Oliver v. Cowley. Park 228. Marshall 368. 369.
Christie v. Secretan. 3 T. R. 192.
3d, That from these leading principles two other consequent rules followed of necessity; that in questions of this kind, the incapacity of a ship is as certain if she was unable to accomplish the whole as if she was inadequate to the accomplishment of any part of the contracted voyage; and that the legal presumption of inability must, in all cases where there were no stronger counter-presumptions, lay the onus probandi upon the assured, the vessel being understood to be warranted to be in a fit condition not only to begin, but to finish her voyage; and that neither the innocence nor ignorance of the assured could avail him against a breach of the implied warranty, the law on that head being absolute.
The Respondents contended, that the law, as stated on the other side, did not apply to the facts. The vessel was proved, by the evidence of the Captain and others, to have been sea-worthy when she sailed from England, and had suffered no damage on the voyage; and that her leaky state, after sailing from Honduras, was owing to the stormy weather. Captain Rains, of the navy, stated that her making twelve inches water in twenty-four hours was a matter of no consequence, as very good vessels often did the same.
The Appellants, to encounter the inference attempted to be drawn from the effect of the weather, had produced to the Court of Session a certificate from the Regulating Captain at Leith, stating that
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Park for Appellants; Gaselee and Horner for Respondents.
Observations and Judgment.
When the inability of a ship appears in a short time from the period of her setting sail, the presumption is, that it arises from causes existing before the commencement of the voyage. Age of ship (35) not a proof of want of sea-worthiness, but of weight in evidence.
Circumstance of her making 12 inches water in 24 hours of more of less weight according to the age of the vessel.
In two days from the time of setting sail, the ship makes 10 inches water in an hour, without adequate cause stated.
After the inability was discovered, it signified nothing whether injured by striking on a reef of rocks, or in any other way.
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The affidavit of the Captain stated, that the loss did not happen in consequence of any damage done by lightning, but that the ship, in the thickness of the weather, when returning, struck on a reef of rocks. Be it so; but if it was meant to infer from it, that this was the cause of the inability to perform the voyage, which inability had been before admitted when the bowsprit of the vessel was turned round towards Belize river, it was an inference of a fact which was physically impossible.
Question was, Whether any circumstance happened between the time of her setting sail and her return, that could account for her condition?
Vessel not sea-worthy at the commencement of the voyage.
The true question was, Whether any circumstances which happened between her sailing from Honduras Bay and her return to Belize could be fairly considered as accounting sufficiently for the non-sea-worthiness of the ship? This was putting it perhaps too strongly. The question was, Whether their Lordships could say that the vessel had been reduced to such a state as that described, by such causes as were alleged for it? He had considered the case with rather a jealousy of the underwriters,
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Principle of law, that if a vessel soon after leaving port is obliged to return, presumption is, that she was not at first sea-worthy, and the onus probandi is thrown on the assured.
The judgment was in the following form:—
“The Lords find, that the ship in question, the Midsummer Blossom, was not sea-worthy when
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she sailed from Honduras on the voyage insured, and therefore find the policy null and void. And it is therefore ordered and adjudged, that the interlocutors complained of be reversed, and the defenders assoilzied. And it is further ordered, that the judgment be without prejudice to any claim of return of premium which the Respondents might have had at the commencement of this action.”
[The same judgment was pronounced in another appeal, arising from an insurance on the ship, in which the question was the same.]
Solicitors: Agents for Appellants, Spottiswood E and Robertson.
Agents for Respondent, Atcheson and Morgan.