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could give no satisfactory reason why this should not be deemed a loss by perils of the seas, although an injury caused by the very same sea above the water-line would be deemed so.

And the evidence for the plaintiff went to show that a beavy sea striking a ship above would strain her down to her bottom, and loosen and weaken her throughout her whole structure, and so cause a leak beneath the waterline.

The witnesses said that where there was no copper sheathing the same rule applied as to injuries to the ship's bottom if beneath the water, but that as to copper-sheathed ships, the test was whether the injury was on the sheathing, which was always beneath the water.

They admitted, however, that the alleged custom had often been disputed, and that the claims were then compromised ; and it had never been litigated except in the case of the ship Pemberton, tried at Liverpool, and that there the jury found against the supposed custom; and also in the case of Philips v. Irving, tried at Guildhall in 1849, where there was a similar result. They could give no reason for the usage, but a theory that the winds and waves could not act on the bottom of a ship, so as to injure it seriously beneath the water.

M. Smith, in cross-examining the witnesses for the defendants as to the alleged custom, was allowed to read passages from works of various mercantile writers on Average, to a contrary effect; but

Brett was not allowed to put into the hands of his witDesses passages from such works in support of the supposed custom.

MELLOR, J., pointed out the differences in this respect between examination in chief and cross-examination.

Among the works thus cited were Bailey on Average;






Stephenson on Average ; Benecke on Average ; and Hopkins, on Average.

Hopkins, an average stater, was called for the defendants to prove the supposed custom, and referred to and adopted a passage in his book as stating his evidence on the subject (a). (This passage was relied on by both sides.)

All the witnesses for the defendants admitted that the alleged custom was often disputed.

One of them contradicted the others as to its effect.

Several of them admitted that they bad allowed items claimed for damage coming within the supposed custom ; but these instances they accounted for as compromises.

At the close of the case, MELLOR, J. (to the jury).—The question is, whether this was a loss “ by perils of the seas.” The policy is a contract of indemnity against such perils. In my opinion evidence is not admissible to alter or to control its terms; but the evidence has been admitted provisionally, as to an alleged custom not to allow for such a loss as caused by perils of the seas; and it is for you to say whether that custom has been proved. Such a custom must be so well known and general, as that it must be supposed to have been in the mind of both parties to the policy, and they must be deemed to have contracted on that footing. It must therefore have been notorious and recognized and acted upon, and if it was often disputed, and compromised, it is difficult to see how it can have been such a custom. Moreover a custom must be reasonable, or it cannot be legal, even though general; and as to this custom, you must consider, on the one hand, that a shipowner does not insure against ordinary wear and tear, and has no right, under pretence of damage by perils of the seas, to have such wear and tear replaced, and an old ship repaired, at

(a) Vide Hopkins' Handbook of Average, ed. 1854, p. 120.



the expense of the underwriters; and, on the other hand, 1862. that it does not seem very reasonable that damage done HARRISON by a heavy sea or a storm above the water-line should be deemed damage done by perils of the seas, but that damage UNIVERSAL done by the very same sea below the line should not be so Insurance

COMPANY. deemed.

Apart from the limitation on the contract by the alleged custom, loss by perils of the seas must be taken to include damage done by winds and waves in a tempest or storm ; but the custom excludes such damage, if done beneath the water-line. It is for you to say if such a custom exists. It is not disputed that the course taken in putting into Rio and having the ship hove down and repaired as it was, was a prudent and proper course to adopt.

But apart from the custom, if we must be satisfied that the damage done was really caused by perils of the seas; and if you think the leak arose from the defective or unseaworthy state of the ship before she was insured, then you must find for the defendants.

For you must be satisfied, to find for the plaintiff, that the loss was caused by perils of the seas during the voyage home.

In conclusion, the learned Judge left to the jury the following questions, which were given to them in writing by the learned Judge:-1. Was the expense of re-coppering reasonably and prudently incurred ? 2. Was the injury occasioned by perils of the sea ? 3. Was there notoriously a custom (in stating claims for average loss between the underwriters and shipowners) to confine the claim to damage above the water-line, unless occasioned by striking the ground, or by collision with some substance other than the water ? 4. Was the plaintiff aware of such a custom ?

At a quarter past 5 o'clock the jury returned into Court, and the foreman said they were agreed as to the first, second and fourth questions, and were 11 to 1 on the third.

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The learned Judge explained at some length that the custom must be well recognized and established-not a thing done to-day and not done to-morrow—not enforced sometimes and sometimes compromised, but something so well understood, that without being expressed it attached to every contract of this nature.

The jury retired and were locked up all night, and ultimately agreed to a verdict for the plaintiff on all the questions submitted by the learned Judge. They found that the cost of re-coppering the Kensington was reasonably and prudently incurred; that the injury which necessitated the expense was occasioned by perils of the sea ; that there was no custom to limit the liability of underwriters to damage above the water-line, except when damage below the water-line was caused by striking the ground or coming in collision with some substance other than water, and that the plaintiff was not aware of any such custom when he insured the ship with the defendants' company.

Verdict for the plaintiff(a).

(a) The following, in exact terms, were the questions submitted for the jury, with their finding thereon :

Q. “Was the expense of heaving down and re-coppering the ship reasonably and prudently incurred, with a view to the safety of the ship and the performance of the voyage insured ?"-A. “Yes."

Q. “Was the injury which occasioned that expense a peril of the gea incurred during the voyage insured, or did it arise in the ordinary wear and tear of the ship incident to the vessel in performing her ordinary duty ?"-A. “From

the perils of the sea on the voyage insured, and not from ordinary wear and tear.”

Q. “Is there notoriously a general custom or practice, in stating and settling claims for average losses between underwriters and persons insured, to confine them to damage above the water-line, unless occasioned by striking the ground, or collision with some substance other than water ?"-A. “No such custom is established."

Q. “Was the plaintiff, or his principals, aware of the practice or custom alleged at the time this policy was made ?"-A. "No."


1862. Court of Common Pleas, Guildhall, coram Erle, C. J. BREMING AND OTHERS V. MACKIE.

London Sittings.

Trinity Term. DECLARATION, that in consideration that the plain- Even where an

agent has autiffs would receive on board a ship of theirs goods of the thority unredefendant's, to be conveyed froin London to Algoa Bay, o

Boy voked to rethe defendant promised the plaintiffs that he would, two the ordinary.

rule of law, in months after the ship should have set sail, pay to the the absence of

any evidence plaintiffs in advance, freight and primage.

of a special Averments, that the goods were received and that the

that the authoship set sail.

rity is to re

ceive payment Breach, nonpayment.

in the ordinary Common counts for freight and primage, and an account

course of busi

ness ; and paystated, &c.

ment to the

agent in any Pleas (inter alia): 4. Payment.

other way be

fore the time 5. Set-off.

when due, will 6. That the claim was satisfied by the plaintiffs and the not, if there is

a revocation defendant mutually agreeing to set off and setting off the before that

time, be a good claim against a good and valid claim of the defendant pa

cucicndam payment as

the against the plaintiffs, of an equal amount, in respect of against

principal. damages sustained by the defendant by reason of the breach by the plaintiffs of a contract made by them with the defendant. Issue.

7. That the claim was solely under the contract in the Ist count, and that such contract was made by and with the authority and consent of the plaintiffs, by the defendant with certain persons (Dando & Chetwynd), in their own names, as if they were the actual principals and the owners or charterers of the ship, and interested in and entitled to receive the freight to their own use, and that by the authority of the plaintiffs they so appeared to the defendant ; and the defendant did not know, nor had they the means of knowing, that the ship was chartered to the plaintiffs, or that the defendants were not interested and entitled, &c., and that before they knew or had the means of knowing this, they satisfied the claim by payment to D. & Co.

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