1920-01-15 — Page 4

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THURSDAY, JANUARY JOTE, 1920.

TEN "LAENTES" COLLISION as to entitle the assured only to read

IMPORTANT JUDGMENT BY SIR

upon the footing of what was actually WILLIAM REES DAVIES.

Er risk, with the result that in conse quence of the payments already made to ECHO OF THE «LIERTES

the assured they will hate been fully'in" * WARRIMOO " COLLISION.

decnified for what was at risk and there The Chief Justice of Hongkong (ir fore recover nothing on the policy. The

RECENT SHIPPING AND MARINE INSURANCE DECISIONS.

CASE 5.

Rights of Seamen to unconaumed Eations. Caa a seaman to hom rations are

Injuries.

William Bees Davies, K.) delivered, Cours (Gorrell Barnes, held that the ined whilst at sea do what be please with the nature of the contract between

yesterday afternoon, an important judg-valuation was binding The case last ment relating to marine insurance. The mentioned (The Main) was approved in facts of these are lucidly set out the judgment of Lord Lindley in in the judgment, which is as follows:

.02

for the

ля

learned

with any portion which he does not consumet.

Smith was a member of the crew of a

in question was one of a mess of ten halk each week in accordance with the am to whom rations were served out in

scale laid down by Section 23 of the Merchant Shipping Act, 1906.

The

CISE P Passenger by Steamship. Company's Liability. This decision points out to intending travellers by sea thà necessity of exercis ing ordinary intelligence and commen sense, and of acquainting "themselves them and the Shipping Company.

Preserved acermmediation on a liner from New York to Glasgow. He sent

ticket, in an envelope, was given to the with a cheque to collect the ticket. The

clerk who kept it until the day of sail." ing, when be handed it to E. Neither P. nor his sherk bnk the trouble to rend

the ticket and neither had ang actual knowledge of its contents,

On the face of the envelope there was hand pointing to the following words printed in capitals: conditions of the enclosed contener."

Please read

On the ticket itself was printed the following notice: This ticket is issued to and accepted by the passenger subject' to the following conditions." Then followed a condition limiting the Com pany's liability for injury to passengers to £10 Lastly came the warning, also iz capitals: "Passengers are requested to carefully read the above contrast."

Tais is an application by way of Balmoral Company v. Marten 1902 steamship, and on the particular voyage one of his clerks to the Company's office Originating Sammons in which the Court 511, a caze which effected an insurance on is asked to direct a liquidator of an It-the vessel itself. surance Company in voluntary Liquida- tion to admit a claim on a policy of L.T. 10 (1019) was also referred to. It The recent case of Rours . Towend 120 Se lnsurance.

was a claim for insurance on the profit statement of facts were agreed on the charter of a vessel which was cap upon between the parties and in so fortured in the war and it was held on is material to the point in issue are the constructive total los of the vessel as follows:-The applicants, the Hang that the plaintiffs were entitled to remembers of the mess agreed that part of Hing Sternship Company Ltd., effected cover.

garine insurance policies with the there was not any jasto in

It is however conceded that the rations (tins of milk and marmalade) Tai Sun Insurance and Banking Com- to, tho loss of profits; but thion should not be opened, but should be kept i

Limited, for 12 months from 18th pany'

applicants contended by July, 1917, ono policy being upon, the hull that as the cargo on which and chared equally between them at the and machinery of the B. Laerter and

the other

on the charter had been insured end of the voyage. Smith, carrying his policy being upon that ship.

had been sold, that if the argument put share of the rationa, was stopped by the No question however arises forward on behalf of the empang in this police it the dock gates on his way home

the profe the policy

the bull and case is well-founded there should have machinery, the aunt of that claim been an opening of the policy in Bours's his wife and family, for whom he had having been paid in full

At to the case to ascertain the value of the cargo saved the rations. policy upon the profs the policy is son a re-sale

This arrangement valued policy and the agreed value of the profit is specified a 3000, 300, whereof the surance Company is that on the loss of sanctioned by, nor wês it known to, the

Now the

the position taken up by the Iamong the members of the mess was not amount of 820,000 is insured under, and the ship the company became liable to is, the agreed value of the policy in pay the applicants for whatever loss they question.

The

Dave suffered up to $90,000. policy is payable in the event of subject-matter of the insurance is the

That the

Smith argued that as the law a laid the total loss of the ship. On 15th Det of the vessel, and that to concede the town in the Merchant Shipping Act

pro- cember, 1617 the ship was sunk as see applicants contention will give them the entitled him to a certain specified quan as the result of collision and becaine a right on the loss of the ship to recoverity of rations, he could either consume total loss. The Insurance Company went the $20,000 into voluntary liquidation in March 1918 incured or whether loss of profits has been and the applicanta claimed from the

In reference

them during the voyage or save them and

The liner grounded off the Trish liquidater the amount of $90,000, respect declared to be the valued profit on the take theen home, and that it was entirely Coast. P. was thrown out of a lifeboat ing the loss of profit. The solicitors for vessel, the learned counsel for the com- the liquidator demanded that the appli-pany alleges that it was the maximum

a matter of choice for himself,

and seriously injured. He alleged that Hold: Smith was wrong.

He could this was due to the negligence of the Com- vouchers

under the policy or of Day proft armed by the ship in other between the date of the policy and the the total loss of the subject assured. date

of the

sinking of the ship.

The Act merely directed the supply of substantial damages. Further that the insertion of a sum pre-rations for the scamen to consume, and plicants however contended that fwach particulars are irrelevant that ther necessary to prove strictly

viously arrived at would render it un under no obligation to furniss the amount of the value the profits if the the exact same and that they are entitled to the

the company becomes line, and that sach-roperty of the shipowners.. agreed value of $90,000 respecting the loss an estimate previously arrived a of proft. The liquidator therefore entire rants the necessity of going into figures Marine Insurance. Propoaul form. Mate-

pre ly rejected the claifa. The applicants involving say that the rejection was wrongful and

the corsideration of freight and other wages

"expenditure. that they are entitled to the agreed prefer to put it the sum is inserted to Or sa I

riality of witrue Statement therein. amount of $20,000 respecting the loss of proft.

insure the shipowner on the footing that

not,

+

the 2 lakhs which in

shipowners.

canta should furnish particulars with amoung recover full indemnity for not do as ho pleased with the provisions.pany's servants, and accordingly claimed

The notice of rejection by the liquids tor states:

(1.) That no proof has been furnished

that any or what cf profit resalted from the loss of the ship.

(2) That the policy upon the profits of the vessel claimed upon was a gambl ing policy and void us such,

Now it is common ground that the policy 6 valued policy, and therefore the position taken up by the applicants is that on total loss of the ship

they

the

any unconsumed rations remained the

CASE 6.

The Company, relying on the condition" above referred to, refused to pay more. than £10. This raised the question: Was the condition limiting the Company's liability assented to by P. so as to bind him!

Held: The condition was binding on value of 9 lakhs for the purpose of as

profits is to be taken to be of the between an assured and a Marine lasurable steps to call attention to the condi The judgments in this case, an action P. The Company bug-taken li resson- certaining what is payable under the ance Company, provide an entertaining tion. If an intending passenger, either Prom this, any the Company, follows that example of the uncertainty of litigation. personally or through his agent, has if the ship is lost say at the outset of The case came before no less than four reasonable notice that a ticket or docu-" the time charter wihout any profits earned urts. Before the first Court the as- that s lakhs would be recoverable, that is sured won before the second Court the ment banded to him" by a carrier con- the full indemnity for the total loss of Insurancey Company succeeded; the as- the subject, assu The position was sured again won before the third Court; the ticket or document as handed to him. tains certain conditions, and be accepte think fairly se

shown by a concrete alla before the fourth and final Court, succes without objection, and without taking the tration, siz that

for mon the on

pany.

trouble to make himself acquainted with would

have approximated to some horms. Before doing so he prudently to have assented to them, and they there- The facts, were these: A shipped a such conditions, then he must be taken

on the

had been availat's once more went to the Insurance Com.

come entitled to the sum insured, $90,000ures if the ship 12 month charter the

irrespective of any proof of profitor o

rendering.

for zo much as concerns the assured or shall be rated and valued at $20,000 only;" and on the covenant which is to be read with the warrantica contained in the margin.

The covenant in the usual

The one and reads as follows

said

the officered, at the ex-

con.

the

оп

اره

the Carrier..

lacta

C. was the indorser of certain bills of

Extra Fine, Crown Prince, Non Plus Ultra, Kitchener the cop and put forward by I think Insurance Vol. I, p.447 which with that description; that the statement time of war, and when nearing port, the

appening?" 2ords "in policy, there is language used in Arnould | warranty:' that the horse did not comply

''

of any account in respect The Taxha of dollars, and if the ship was inured it against marine perils and the of They rely on the terms of the lost the

last day of the eleventh month risk of mortality during the voyage which

states that the profit-c

-of the

is their contention the 9 lakhs rader the applicants could claim according to

upon become evidence of the contract of The policy provided that & Proposal carriage made between the passenger and policy without accounting for the 4 lakhs Form which A had signed, should be of profits already accrued.,

the basis of the insurance and should be. This allegation of Fact was on the ap incorporated in the policy. The Form

CASE B.. plicants' case incontrovertible, and I need contained a declaration by A. warrant Abandonment of Ship at Sea. Ship and Tai San Insurance and Banking Comon a cunne it may be open to the ob statements made in it by him.

y that if the applicats conten ing and declaring the truth of all the

Cargo Ultimately Salved. Ship- pany, "Limited, covenant, (which agree, and oblige themselves action that it is a gambling policy under

Unfortunately one of the statements their the Act of Gen. II. I do not

owner's Right to Freight. Heirs Executors, Goods and Chattels, in think it neosary to decide that point.

bowever was untrue. It had reference to the case of Loss happening, God forbid) to

description of the horse and read 28

This decision involved a difference in Mr. Pollock contended that the post follows: Bay, gelding by Joy out of judicial opinion on an interesting stats of catisfy and pay in

Hongkong the sum tion taken up by the company was Mark (mare), 5 years" of money by them so

illogical, that if the ship is lost on [piration of Thirty :

after the first the first day of the voyage the 8 lakhs natural causes. A. claimed against the lading for the carriage of a cargo of

During the voyage the horse died from proper Notice

of the Loss is would be recoverable whereas if she runs Insurance Company to recover, a total loss wood. The goods were to be delivered at given

to

in Hongkong and no

month low of profit must be prova under the policy, CIGARETTES the

abatement whatever shall be

but is not the answer however that profits mads full wom

im shall be paid, any use or made should be accounted for an against

a specified English port on payment of custom to the contrary notwithstanding"

The Company refused to pay, contend freight. The bills of lading contained the full indemnity? Some argument took place as to the

In regard to the opening of a valued (mare)" in the Proposal constituted a

ing that the words "By Joy out of Mark the usual exceptions, including King's struction to be placed on

enemies and restraint of princes. the case of Lass

but lagres on Marine

On the voyage, which took place during the applicante,

in point and gives an illustra was untrue; and that the policy was ship was met by an enemy submarine, the understand I

thal- tion of opening a policy. lenged

by the company, that the loss in the case of the goods being partially was that the words referred merely to the ship by threats of shooting them to

'Of course, accordingly void. A's answer to this referred to clearly relates to the loss of damaged, the policy alone can never show pedigree, and that the pedigree of the take to their boate; they placed and ex- crew of which compelled the crew of the vessel and not to loss on profit. This what the tnderwriter ought to pay for horse was in no way material to the ploded bombs on the ship, and towed apinion however does not affect the view the amount due from him is which I take on the argument generally, percentage on the sum he has agreed to

which I will deal with briefly,

insure, as the damage which the goods Held by the final Appeal Court): The cast them off. The last the crew aw and away. the crew for fre miles and then Pollock cited a number of Loses

have suffered is upon their values in words in question were capable of mate hoard of the vessel led them to believe to demonstrate that the difference in other words, the proportion of the whole rially affecting the transaction. If they that abe, bad tak effect between a valued and an open sum ineured which the underwriter has were left out there would be nothing to policy is that ander

lose the

der an open policy into pey, in caso of

In fact, she did not sink, but was found loss, must depend upon show what kind of horse the animal in Case of

sasured must prove the the proportion in which the goods are sured was. The risks against which it naval patrols into port. actual value of the subject of insurance

a water-logged derelict and towed by ed: the one sum cannot be as was insured might well be affected by the

without fixing the other, and circumstances expreexad in the words he was entitled to delivery of the cargo the damage the goods have sustained stating the pedigree. The conrage, the

In these circumstances, C. claimed that ever be made gut except by calcula docility, the endurance of the horse, and ground that the shipowners had abandon- Barker J. Janson 3.OP 303 it was tions

without payment of freight, on the whether stated in a valued time policy is in the thin sense be opened in every eren of very well be affected one way or the other the not of the master and crew in leaving оред or valued, must in the voyage and being landed safely might raised the interesting question: Did absence of fraud conclusive between the average loss,

however largely in excess of the

Opening the policy, then, in "this by ite pedigree. The description might the ship under threats amount to a In that case the opinion of the Indges to extrinsic evidence, in order to ascer outed, or if, the vessel being overdue, it did. On appeal, que Judge 1986 of perise, means nothing more than resorting identity of the animal came to be dis-

also be material if in case of loss, the abandonment of the ship? in the House of Lords in Irving v. Mau-

Cain the nering 1 HLC. at p.307 was cited as the subject insured, so as to fix one the underwriters desired to ro-insure opinion that it did not, whilst the other The Trial Judge was of opinion, that amount of damage sustained by follows:

element in "In a valued policy the

calculating the amount of their line on the horse total indemnification to which the sasured is

two Judges left the question unanswer... value is occlusive: each party has

Hence, elfeet bad to be given, to the it entitled; is, in fact, merely ascertain words describing the pedigzne by hold- hasing the conclusively admitted that sum shall be that which the assured in

fixed the percentage of damage sustained ing in law that. A warranted their entitled to receive in case of a total loss.

"It ng insured.

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whilst under a valued policy the need not

do

so, the valuation in the policy being conclusive between the partics.

as

can never

In

213

the same

risk.

held that the value of the ship' in wholly extrinsic to the policy, evars the consequent likelihood of its makinged the prosecution of the voyage. "This

Egreed

in fact long been established truth, and, as the words turned out to It is argued that this course of proceed that a valuation has precisely the same ed. A. therefore failed in his claim.

be untrue, that the policy must be avoid-

in cases of particular avtrago se it

:)

ing infringes on the generally received

effect raie, that an insurance is a mere con- bae in cases of total lona, viz., to relieve taken in this case: nine favoured the The opinions of fourteen. Judges were tract of indemnity, for thus the assured the assured from proving the prime cont, Insurance Company, and five the nasur may obtain more than a compensation or insurable value

his loss: and it is so.

In A policy of arena ta

cases to which I have not a per-

reformard to the

and others cited in argument It must be Mr. Potter contended that there was in taken with this Parties may agree beforehand in

fect contract of cation, that the all cases proof of the total loss of the

is, I think, consistent with justice

so in tard. That this was obviously can come to our conclusion only, and ved common sense, that the owners should

ing the value of the subject ateured, be 30 10th ed.

and

ed

difference between abandonment of a Baid the Trial Judge: There is no vessel under stress of enemy violence and abandonment under stress of the violence

was water-logged, and when the crew of the weather. The vessel was left a derelict on the face of the waters. last saw her she was believed to be sink- Sho

ing. The master and crow clearly in- dicated by what they did, not to carry out the contract but to abandon tho The Appal Judge: This is not so Abandonment by stress of weather takes

further performages of it.

Ey of liquidated damages, as indeed been effected on the too in selvrender particulars of the profits earned place because the master comes to tha."

vessels

in the case of

to

performed. He orders the crow to the

domnify. In the two foregoing bases I

it was held that the vaination is date of the loss of the vessel, and that minst observe that the insurance was conclusive the subject matter of the policy theng profita should be accounted for a boate. because the enterprise has failed, effected on the vessels themselves and total was proved. Now that case decided that loss was proved

In the Main 1824 p.320 the polovicus be reopened, but it was proved that the not overlooked the terms of the covenant ment. But, bere the grow left the vessel

the valuation was binding and could not against the

the jum insured

In giving that order there is an element effected on freight. At the date the fruight was in fact lost

arriving at this conclusion I have

of volition and of the exercise of judg- m ber voyage the vessel met with an aby valuation. Although that case is the clearly maanx the sum of money so nasur vessel would be destroyed (although such policy the valuation was reasonable but fraight at risk was below the looting of to pay

the which is in the common form. The word at the point of the revolver; täcy did the mum et money so nasured not leave it because they thought the in repairs the rates of freight decified the case before me, I think the distinced on loss of profit; and for the reasons an event was very probable), but to avoid accident, und during the time occupied nearest nathority which I can discover considerably and the engagements of cargo bid to be cancelled the subject matter of the policy the such loss of profit as is proved to be ment" excost in the sense of leaving the

greater part of the

ction is material that there was proof of in

ine which I have given the loss of profs can being shot. There was no judgment or

in my opinion In the course of the voyage the real loss of Eraight insured against whereas due within the margin of the valuationship. It is just as if they had been bo only construed to meant volition in the matter, and no abandon- and the words "no abatement whatever shall be made" that quatification. The applicants must the boste

must be read subject to bound hard and feat end, thrown into pay the costs of thess proceedings,

G.W

was lost and the question was whether the applicant in this case delines to the assured could recover on the footing furnish any proof of profit at all, of the valuation effecter by them, or who (Continued at foot of next column.)... ther that valution could be opened, co