and JAMESSTODART , Merchants in Edinburgh
January 4 . 17 7 1.
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F O R
J A M E S S T U A R T , E s p; and J A M E S S T O D A R T , Merchants in Edinburgh ;
TO
P E T IT IO N
THE
of R O B E R T
I N N E S Merchant in Elgin.
H E respondents were the first persons in this country who insured ships and cargoes from all sea-dangers; and as they, in their dealings, always behaved in the fairest manner, chearfully paying whatever loss or damage was sustained by the insured, they can, without boasting, say, they have obtained the general approbation ; and, so far are they from deserving the reflections thrown out against them in the end of the petition, that t his is the first dispute they have had about payment of any losses sustained
T
by the insured. In September 1769, the respondents underwrote a policy of insurance of a cargo of oats and bear, the property of Robert Innes merchant in Elgin, valued at L . 100 Sterling ; and, in consideration of
a
a premium of L. 1 : 5 : 0, or 1 1 / 4 percent. they bec any loss that should happen to the cargo of the ship Ann, Donald M'Ewan master, consisting of bear and oats, during the course o f her voyage from L o ssie-mouth to the Frith of Forth. The ship having set fail met with a hard gale of wind in her passage to the Frith of Forth, and, becoming leaky, the crew, in order to save their lives, the water being above the cabbin-floor, (as appears by the protest taken by the master), were obliged to make for the harbour of Montrose, being the nearest port. In coming into which harbour, the vessel being then so full o f water, that she would not answ er the helm, touched upon a rock, and afterwards fat down in the mouth of the river; and that very day the cargo was taken our, being considerably damaged, was afterwards sold for L. 4 1 : 1 4 : 2 1/4,after paying all expences. A demand being made upon the respondents for payment of the diff e rence betwixt the value of the cargo insured, and the money recovered, the respondents at first, rather than have any dispute about this matter, offered to pay ten shillings in the pound of the real loss sustained. But this not being accepted, a submission was entered into, which as one of the arbiters declined accepting, nothing was done in it. One of the respondents being informed of this by the petitioner’s son, he desired him to put in his place either Mr John For rest, or Mr John Inglis, or any other merchant o f character he pleased. This however was not done, and a process was brought against the respondents for payment of L. 100 Sterling, the value of the cargo insured, deducing the L. 41 : 14 : 21/4, as what was recovered from the damaged coin. W hatever offers the respondents had made when this question was first mentioned, they thought the proceedings of the petitioner were such, that he did not deserve any favour at their hands; and therefore, when the cause was brought before the Lord Barja rg Or dinary, they maintained, that they could not be liable for any da mage this cargo had sustained, either by the practice of merchants, or by the terms of the policy of insurance ; as it expressly bears an exception, mm
exception, “ That corn, flax-seed, salt, fish, and fruit are warranted free from all average, unless general, or the ship be stranded.” That none of these had happened in the present cal , it being evi dent by the protest taken by the master, as well as the depositions of the witnesses, that damage was done to the cargo in the hold, by the vessel springing a leak at lea, and that the quantity of water she had taken in was the occasio n of her couching the rock. T he Lord Ordinary, upon advising me morials, was pleased ‘‘ t o find, that the ship and cargo were damaged in the course of the voyage, before the ship struck or stranded; and, as that damage was neither a general average, nor occasioned by the stranding; therefore assoilzies the defenders, and decerns.” This interlocutor being unexpected to the pursuer, as he tells your Lordships, a representation was given in against it, in which it was insi sted, 1 s t , T hat it did not appear that damage was done to the cargo before the vessel was stranded ; and, 2dly, That sup posing it were, that the meaning of the words in the policy of the s hip being s t r a ,n d e is the proper criterion for subjecting the underwriters, whether the damage arose from the stranding, or might have happened before the vessel struck. But it was not insisted upon, either that general average was due, which is the loss or damage suffered for the good and safety of the whole, both of ship and car go ; or that there was a total loss in this case. T h e Lord Ordinary having considered the representation, with the answers, was pleased to adhere to his former interlocutor. In the petition against these interlocutors, which is ordered to be answered, it is for the first time sa id, that there was a total loss o f this cargo: But this is but very faintly insisted upon ; as it would be ridiculous to pretend there was a total loss, where near half the value was recovered. B ut the respondents, with great submission, apprehend, that it can make no odds upon the determination of this question, supposin g that no part of the cargo had been saved after the ship had struck upon the rock, provided they shall be able to satisfy your Lordships, that the damage was done to the cargo long prior to the ships stranding, and by the quantity of water ta ken
ken in at sea; and, in that case, it comes under the exception in the policy of insurance, which frees them from all average, un less general, or in the caSe of the ship being stranded. That damage was done to the cargo prior to her stranding, is, with submission, put beyond a doubt. T he protest taken by the ma ster against wind and weather bears, ‘ That a storm having arose, and the sea making a free passage over the vessel, and at the Same time making a great deal of water, so that they could scarce keep her free with the pump, which made him suspect that damage was done to the cary in the hold.' And, in another part of the protest, he says, that the damage sustained was owing allenarly to the violence of the storm, anti roughness of the sea ; and, when the pilot came on board then off the harbour of Momtros e, the water was above the s ole o f the cabbinfloor." To the same purpose is the deposition of Alexander Storm, who adds, ‘ That, by the time the stoop came near to the harbour of Montrose, she was so disabled by me water taken in, she could not answer the helm, which was the occasion of her striking upon the rock.' And the master of the vessel swears, that if the vessel would have answ ered the helm, which she did not do, from the quantity of water taken in, they could have prevented her striking on the rock. Your Lordships will please further to observe, that, if the ship had made for the port of Montrose, without being disabled, or spring ing a leak at sea, it would have been deviating from the course of the voyage, and contrary to the terms of the insurance, and the defen ders would not have been liable for any damage that arose from her taking the river or harbour of Montrose. It is, with great submission, maintained, that a stronger proof cannot bebrought, that damagewas done to the cargo in the hold from the water taken in by the leak long before she came into the harbour of Montrose. And it is impossible, from the nature o f things, to suppose, that, when the water was above the cabbin-floor that the cargo could be unhurt; and therefore they, with great submission, maintain, that, agreeable to the express words of the policy of insurance, they cannot be liable for this loss, which did not
not arise from the stranding of the vessel, but from the leak she had sprung at sea ; and they are expressly freed from all sea-hazards, except the ship’s stranding, or general average. The respondents have all along maintained, that the practice of merchants is agreeable to this,and hitherto have not been contradict ed by the pursuer, but it seems rather to be confirmed by the quota tion from Magens, narrated in the petition. It is there observed, that a ship laden with corn, which was insured by the London insu rance-company, in going down the river, touched the ground, and the cargo was thereby damaged. A law-suit being brought against the company for payment of the damage, it was con ten led for them, that touching the ground was not stranding; and it was only upon the medium, that touching the ground was the sa me as stranding, that they were found liable for the damage sustained by the cargo, from this, it is clear, that the London insurance company understood, that they were only liable for the damage done by stranding. But, in transcribing this passage, the petitioner has omitted to compleat the sentence; for, after the words, ‘ the ship stranded is now lest out,’ he adds, ‘ and so submit only to pay general average, or total loss but no general average is due at pre sent, nor has a total loss happened. It is said in the petition, that, in consequence of this doctrine, crews would abandon vessels, in order to create a total loss, rather than lave a part. But your Lordships will please be informed, that the insured are bound to take care of the goods, and can be put upon oath, whether they have done so or not; and it is not till the insu red have done all in their power, that the insurers are liable. And to this purpose, the same author, vol. 2. p. 227. says, ‘ T h e assured are not permitted to abandon a ship or goods that are insured, but he is to use his utmost endeavours to avoid any damage, to preserve the ship and goods, and to promote the advantage of them. N o person ass ured can abandon good liable to perish.' T h e respondents submit it to your Lordships, how far an excep tion of this kind ought not to be most favourably interpreted for the insurers. Postlethwait, treating upon this subject, observes, that, from
from the policies, as they are used at present, goods are insured a gainst heaven and earth, storms, enemies, & c .; and therefore, that any exception that is introduced in favours of underwriters should be favourably interpreted. It is insisted upon in the petition, that the words in the policy, of ships being stranded, is the proper criterion for subjecting the un derwriters, whether the damage arose from the stranding, or before the vessel struct .
T he respondents agree with the petitioner, when he says, that the ship’s stranding is the proper criterion to subject: the underwriters to the insured ; but they deny that they are liable for any other damage or sea-hazard than wh at arises immediately from the ship's strand ing. For in the first place, suppose that the ship had never strand ed, but, notwithstanding the leak, had got safe to harbour, agreeable to the doctrin e of the petitioner, the respondents could not be liable for any damage the cargo had received; the stranding being the proper mark by which your Lordships are to determine, whether the u nderwriters are liable for the loss sustained by the insured. In the present case, it is clear, that damage was done to the car go prior to the vessel's stranding; and, if she had not stranded, the respondents could not be liable for the damage. It surely then, with submission, would be contrary to common sense or equity, to say that, because the ship met with the second accident, ana struck, upon a rock, they must be liable for the damage occasioned by the vessel's springing a leak, which they could not have been, had she not afterwards stranded. It is therefore, with submiss ion, maintained that the insurers are not liable for the lots here sustained ; this parti cular cargo, and all other perishable commodities, being by the policy expressly excepted from all sea-hazards, and free from all average unless general, or what is immediately stranding.
occasioned by the ship’s
But, 2dly, the respondents would beg leave to ask what meaning can be put on this exception, but that put upon it by them ? If, as said in the petition, this cargo, though particularly ex cepted, is still subject in average for loss sustained from sea-hazards
of
of whatever kind, this clause is altogether absurd. By the terms o f insurance, goods of whatever nature are insured against all sea ha zards, unless particularly excepted. W hy then make a distinction in perishable commodities, and yet make them liable to sea-hazards of whatever kind under the name of the ship being stranded, which, by the argument maintained in the petition, is the c ase? Nor can this exception, introduced in favours of t h e insurers, be so wrested as only to apply to free them from damages arising from na tural causes. No average is due upon any cargo for loss sustained either from a natural decay of the goods, or from any accidents un connected with sea-hazards; for example, if a cargo of cheese, which is none of the commodities excepted in policies, were, in part, consumed by rats or mice ; or a cargo of wine, some of the casks o f which sho uld happen to leak or be staved ; in none of these cases could the insurers be subjected to pay the damages, they not arising from sea-hazards. In like manner, commodities of a perishable nature, and such as are excepted in the policy, would not subject the insurers to pay any damage arisin g from a natural decay or corruption of the goods, even although no exception had been made. There can be no occasion, therefore, for this exception, if it was only meant to distinguish the loss sustained by sea-hazards, from that which arose from the natural decay of the goods. In fine, when the argument in the petition is conflicted, it makes this exception perfectly absurd and without a meaning. On the other hand, when the explanation given to it by the respondents is examined, it will be found to he agreeable to the practice of merchants, to the plain meaning and acceptation of the words. This exception in the policy, as explained by the respondents, is evidently calculated for the benefit of the trader. It is intended as a tie both on freighters and shipmasters, that none but the most suffi cient vessels should be employed in transporting the necessaries o f life ; and it is evident, that, if perishable commodities were not except ed and free from the common accidents that must attend all vessels sailing upon the sea, no person would be found that would under write such policies for the trifling premium of one and a quarter per cent,
cent. ; and , before such goods could be ensured, a very high premium must be paid. But., to prevent this, all policies of insurance contain the exceptions as to goods of a perishable nature. When your Lordships consider that such commodities areliableto be damnified by the least sea-water taken in either by springing aleak, which may happen to the stoutest vessel without any stress of weather, or from a wave breaking over the ship, it requires no argument to satisfy your Lordships, that the practice of merchants is agreeable to the words of the policy ; and that in cargoes of grain, the owners or freighters take upon them the common and ordinary risks of the voy- age, and such as happened in the present case ; and that the insurers are only liable in general average or damage received by the ship's stranding. None these hasa leak happened present ; the damage to the cargo arose from the ship'sof springing at sea,at long before she came todone the Harbour of Montrose ; and, bytheexpress words of the policy, they are not liable in such damage. The re- spondents, therefore, with humble confidence, hope, that your Lord- ships will be pleased to adhere to the Lord Ordinary's interlocutor, and will find that, from the express words of the policy, they cannot be liable in any average for the loss sustained. In respect whereof, & c. C L A U D BOSW ELL.
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F O R
J A M E S S T U A R T , E s p; and J A M E S S T O D A R T , Merchants in Edinburgh ;
TO
P E T IT IO N
THE
of R O B E R T
I N N E S Merchant in Elgin.
H E respondents were the first persons in this country who insured ships and cargoes from all sea-dangers; and as they, in their dealings, always behaved in the fairest manner, chearfully paying whatever loss or damage was sustained by the insured, they can, without boasting, say, they have obtained the general approbation ; and, so far are they from deserving the reflections thrown out against them in the end of the petition, that t his is the first dispute they have had about payment of any losses sustained
T
by the insured. In September 1769, the respondents underwrote a policy of insurance of a cargo of oats and bear, the property of Robert Innes merchant in Elgin, valued at L . 100 Sterling ; and, in consideration of
a
a premium of L. 1 : 5 : 0, or 1 1 / 4 percent. they bec any loss that should happen to the cargo of the ship Ann, Donald M'Ewan master, consisting of bear and oats, during the course o f her voyage from L o ssie-mouth to the Frith of Forth. The ship having set fail met with a hard gale of wind in her passage to the Frith of Forth, and, becoming leaky, the crew, in order to save their lives, the water being above the cabbin-floor, (as appears by the protest taken by the master), were obliged to make for the harbour of Montrose, being the nearest port. In coming into which harbour, the vessel being then so full o f water, that she would not answ er the helm, touched upon a rock, and afterwards fat down in the mouth of the river; and that very day the cargo was taken our, being considerably damaged, was afterwards sold for L. 4 1 : 1 4 : 2 1/4,after paying all expences. A demand being made upon the respondents for payment of the diff e rence betwixt the value of the cargo insured, and the money recovered, the respondents at first, rather than have any dispute about this matter, offered to pay ten shillings in the pound of the real loss sustained. But this not being accepted, a submission was entered into, which as one of the arbiters declined accepting, nothing was done in it. One of the respondents being informed of this by the petitioner’s son, he desired him to put in his place either Mr John For rest, or Mr John Inglis, or any other merchant o f character he pleased. This however was not done, and a process was brought against the respondents for payment of L. 100 Sterling, the value of the cargo insured, deducing the L. 41 : 14 : 21/4, as what was recovered from the damaged coin. W hatever offers the respondents had made when this question was first mentioned, they thought the proceedings of the petitioner were such, that he did not deserve any favour at their hands; and therefore, when the cause was brought before the Lord Barja rg Or dinary, they maintained, that they could not be liable for any da mage this cargo had sustained, either by the practice of merchants, or by the terms of the policy of insurance ; as it expressly bears an exception, mm
exception, “ That corn, flax-seed, salt, fish, and fruit are warranted free from all average, unless general, or the ship be stranded.” That none of these had happened in the present cal , it being evi dent by the protest taken by the master, as well as the depositions of the witnesses, that damage was done to the cargo in the hold, by the vessel springing a leak at lea, and that the quantity of water she had taken in was the occasio n of her couching the rock. T he Lord Ordinary, upon advising me morials, was pleased ‘‘ t o find, that the ship and cargo were damaged in the course of the voyage, before the ship struck or stranded; and, as that damage was neither a general average, nor occasioned by the stranding; therefore assoilzies the defenders, and decerns.” This interlocutor being unexpected to the pursuer, as he tells your Lordships, a representation was given in against it, in which it was insi sted, 1 s t , T hat it did not appear that damage was done to the cargo before the vessel was stranded ; and, 2dly, That sup posing it were, that the meaning of the words in the policy of the s hip being s t r a ,n d e is the proper criterion for subjecting the underwriters, whether the damage arose from the stranding, or might have happened before the vessel struck. But it was not insisted upon, either that general average was due, which is the loss or damage suffered for the good and safety of the whole, both of ship and car go ; or that there was a total loss in this case. T h e Lord Ordinary having considered the representation, with the answers, was pleased to adhere to his former interlocutor. In the petition against these interlocutors, which is ordered to be answered, it is for the first time sa id, that there was a total loss o f this cargo: But this is but very faintly insisted upon ; as it would be ridiculous to pretend there was a total loss, where near half the value was recovered. B ut the respondents, with great submission, apprehend, that it can make no odds upon the determination of this question, supposin g that no part of the cargo had been saved after the ship had struck upon the rock, provided they shall be able to satisfy your Lordships, that the damage was done to the cargo long prior to the ships stranding, and by the quantity of water ta ken
ken in at sea; and, in that case, it comes under the exception in the policy of insurance, which frees them from all average, un less general, or in the caSe of the ship being stranded. That damage was done to the cargo prior to her stranding, is, with submission, put beyond a doubt. T he protest taken by the ma ster against wind and weather bears, ‘ That a storm having arose, and the sea making a free passage over the vessel, and at the Same time making a great deal of water, so that they could scarce keep her free with the pump, which made him suspect that damage was done to the cary in the hold.' And, in another part of the protest, he says, that the damage sustained was owing allenarly to the violence of the storm, anti roughness of the sea ; and, when the pilot came on board then off the harbour of Momtros e, the water was above the s ole o f the cabbinfloor." To the same purpose is the deposition of Alexander Storm, who adds, ‘ That, by the time the stoop came near to the harbour of Montrose, she was so disabled by me water taken in, she could not answer the helm, which was the occasion of her striking upon the rock.' And the master of the vessel swears, that if the vessel would have answ ered the helm, which she did not do, from the quantity of water taken in, they could have prevented her striking on the rock. Your Lordships will please further to observe, that, if the ship had made for the port of Montrose, without being disabled, or spring ing a leak at sea, it would have been deviating from the course of the voyage, and contrary to the terms of the insurance, and the defen ders would not have been liable for any damage that arose from her taking the river or harbour of Montrose. It is, with great submission, maintained, that a stronger proof cannot bebrought, that damagewas done to the cargo in the hold from the water taken in by the leak long before she came into the harbour of Montrose. And it is impossible, from the nature o f things, to suppose, that, when the water was above the cabbin-floor that the cargo could be unhurt; and therefore they, with great submission, maintain, that, agreeable to the express words of the policy of insurance, they cannot be liable for this loss, which did not
not arise from the stranding of the vessel, but from the leak she had sprung at sea ; and they are expressly freed from all sea-hazards, except the ship’s stranding, or general average. The respondents have all along maintained, that the practice of merchants is agreeable to this,and hitherto have not been contradict ed by the pursuer, but it seems rather to be confirmed by the quota tion from Magens, narrated in the petition. It is there observed, that a ship laden with corn, which was insured by the London insu rance-company, in going down the river, touched the ground, and the cargo was thereby damaged. A law-suit being brought against the company for payment of the damage, it was con ten led for them, that touching the ground was not stranding; and it was only upon the medium, that touching the ground was the sa me as stranding, that they were found liable for the damage sustained by the cargo, from this, it is clear, that the London insurance company understood, that they were only liable for the damage done by stranding. But, in transcribing this passage, the petitioner has omitted to compleat the sentence; for, after the words, ‘ the ship stranded is now lest out,’ he adds, ‘ and so submit only to pay general average, or total loss but no general average is due at pre sent, nor has a total loss happened. It is said in the petition, that, in consequence of this doctrine, crews would abandon vessels, in order to create a total loss, rather than lave a part. But your Lordships will please be informed, that the insured are bound to take care of the goods, and can be put upon oath, whether they have done so or not; and it is not till the insu red have done all in their power, that the insurers are liable. And to this purpose, the same author, vol. 2. p. 227. says, ‘ T h e assured are not permitted to abandon a ship or goods that are insured, but he is to use his utmost endeavours to avoid any damage, to preserve the ship and goods, and to promote the advantage of them. N o person ass ured can abandon good liable to perish.' T h e respondents submit it to your Lordships, how far an excep tion of this kind ought not to be most favourably interpreted for the insurers. Postlethwait, treating upon this subject, observes, that, from
from the policies, as they are used at present, goods are insured a gainst heaven and earth, storms, enemies, & c .; and therefore, that any exception that is introduced in favours of underwriters should be favourably interpreted. It is insisted upon in the petition, that the words in the policy, of ships being stranded, is the proper criterion for subjecting the un derwriters, whether the damage arose from the stranding, or before the vessel struct .
T he respondents agree with the petitioner, when he says, that the ship’s stranding is the proper criterion to subject: the underwriters to the insured ; but they deny that they are liable for any other damage or sea-hazard than wh at arises immediately from the ship's strand ing. For in the first place, suppose that the ship had never strand ed, but, notwithstanding the leak, had got safe to harbour, agreeable to the doctrin e of the petitioner, the respondents could not be liable for any damage the cargo had received; the stranding being the proper mark by which your Lordships are to determine, whether the u nderwriters are liable for the loss sustained by the insured. In the present case, it is clear, that damage was done to the car go prior to the vessel's stranding; and, if she had not stranded, the respondents could not be liable for the damage. It surely then, with submission, would be contrary to common sense or equity, to say that, because the ship met with the second accident, ana struck, upon a rock, they must be liable for the damage occasioned by the vessel's springing a leak, which they could not have been, had she not afterwards stranded. It is therefore, with submiss ion, maintained that the insurers are not liable for the lots here sustained ; this parti cular cargo, and all other perishable commodities, being by the policy expressly excepted from all sea-hazards, and free from all average unless general, or what is immediately stranding.
occasioned by the ship’s
But, 2dly, the respondents would beg leave to ask what meaning can be put on this exception, but that put upon it by them ? If, as said in the petition, this cargo, though particularly ex cepted, is still subject in average for loss sustained from sea-hazards
of
of whatever kind, this clause is altogether absurd. By the terms o f insurance, goods of whatever nature are insured against all sea ha zards, unless particularly excepted. W hy then make a distinction in perishable commodities, and yet make them liable to sea-hazards of whatever kind under the name of the ship being stranded, which, by the argument maintained in the petition, is the c ase? Nor can this exception, introduced in favours of t h e insurers, be so wrested as only to apply to free them from damages arising from na tural causes. No average is due upon any cargo for loss sustained either from a natural decay of the goods, or from any accidents un connected with sea-hazards; for example, if a cargo of cheese, which is none of the commodities excepted in policies, were, in part, consumed by rats or mice ; or a cargo of wine, some of the casks o f which sho uld happen to leak or be staved ; in none of these cases could the insurers be subjected to pay the damages, they not arising from sea-hazards. In like manner, commodities of a perishable nature, and such as are excepted in the policy, would not subject the insurers to pay any damage arisin g from a natural decay or corruption of the goods, even although no exception had been made. There can be no occasion, therefore, for this exception, if it was only meant to distinguish the loss sustained by sea-hazards, from that which arose from the natural decay of the goods. In fine, when the argument in the petition is conflicted, it makes this exception perfectly absurd and without a meaning. On the other hand, when the explanation given to it by the respondents is examined, it will be found to he agreeable to the practice of merchants, to the plain meaning and acceptation of the words. This exception in the policy, as explained by the respondents, is evidently calculated for the benefit of the trader. It is intended as a tie both on freighters and shipmasters, that none but the most suffi cient vessels should be employed in transporting the necessaries o f life ; and it is evident, that, if perishable commodities were not except ed and free from the common accidents that must attend all vessels sailing upon the sea, no person would be found that would under write such policies for the trifling premium of one and a quarter per cent,
cent. ; and , before such goods could be ensured, a very high premium must be paid. But., to prevent this, all policies of insurance contain the exceptions as to goods of a perishable nature. When your Lordships consider that such commodities areliableto be damnified by the least sea-water taken in either by springing aleak, which may happen to the stoutest vessel without any stress of weather, or from a wave breaking over the ship, it requires no argument to satisfy your Lordships, that the practice of merchants is agreeable to the words of the policy ; and that in cargoes of grain, the owners or freighters take upon them the common and ordinary risks of the voy- age, and such as happened in the present case ; and that the insurers are only liable in general average or damage received by the ship's stranding. None these hasa leak happened present ; the damage to the cargo arose from the ship'sof springing at sea,at long before she came todone the Harbour of Montrose ; and, bytheexpress words of the policy, they are not liable in such damage. The re- spondents, therefore, with humble confidence, hope, that your Lord- ships will be pleased to adhere to the Lord Ordinary's interlocutor, and will find that, from the express words of the policy, they cannot be liable in any average for the loss sustained. In respect whereof, & c. C L A U D BOSW ELL.
