K .B . Div.] Reliance Marine Insurance Companyv. Duder. [K .B . Div. under a policy o f reinsurance upon the vessel
Kynance.
B y th e ir points of claim the p la in tiffs pleaded th a t they caused themselves to be insured by a policy dated the 9th Aug. 1910, which was expressed to be a policy of reinsurance fo r 500Z.
upon the vessel Kynance, valued as in o rig in a l policy, against the risk of to ta l o r constructive to ta l loss only, subject to the same terms, clauses, and conditions as the o rig in a l policy or policies, and to pay as may be paid thereon. The voyage insured was “ a ta n d from Valparaiso and (or) any p o rt or ports, place or places on the W est Coast of South A m e rica ” to the U nited K in g d o m or Europe or the U nited States. They alleged th a t on the 29th J u ly 1910 the Kynance while on the insured voyage from Valparaiso to Tocopilla, whence she was to sail to the U nited K ingdom , was to ta lly lost by perils insured against
— viz., perils o f the sea.
They also alleged th a t at the tim e o f the loss they were fu lly interested in the policy of the 9 th Aug. 1910 in th a t they had executed and delivered to the owners of the Kynance two policies o f insurance on the vessel, dated the 6th and 11th M ay 1910 respectively, each fo r 5001. Each o f these policies insured the vessel fro m Newcastle, N S W ., to p o rt or ports, place o r places in any order or ro ta tio n on the W est Coast of South America. The vessel was valued a t 12,0001, and the ris k was to continue u n til th ir ty days a fte r a rriv a l a t fin a l p o rt o f discharge or u n til sailing on next voyage, whichever m ig h t firs t occur.
The defendant by his defence pleaded th a t the Kynance was also insured by the p la in tiffs under another policy fo r lOuOZ., dated the 4th A ug. 1910, fo r her homeward voyage, which was described as
“ a t and from Valparaiso and lor) p o rt o r ports and (or) place or places in any order or ro ta tio n on the W est Coast of South A m e ric a ” to the U nited K in g d o m or C ontinent or the U nited States.
The vessel was valued a t 10,0001., and the risk was to continue u n til th ir ty days a fte r arrival, however employed, or u n til sailing on next voyage, whichever m ig h t firs t occur.
The policy contained a provision :
I n th e eve nt o f to ta l and (or) c o n s tru c tiv e to t a l loss o f th e vessel, u n d e rw rite rs ’ su b s c rip tio n s to be lim ite d to 50 per oent. o f th e ir lines. W a rra n te d n itr a te o r h e ld , covered a t a p re m iu m to be a rra n g e d .
The policy also contained a p ro viso :
E is k to commence fro m e x p ira tio n o f p revious p o lio y .
The defendant also alleged th a t the risk intended to be reinsured by his policy was the risk under the p la in tiffs ’ policy of the 4 th A ug. 1910, and he said there had been no loss under th a t policy, and th a t the ris k never attached, the Kynance having been lost before the expiration of the previous policy, and also th a t there had been a breach of the w arranty : “ W arranted n itra te .”
The p la in tiffs had given w ritte n instructions to th e ir brokers, dated the 14th J u ly 1910, to negotiate the reinsurances w ith the defendant.
These instructions were fo r a reinsurance on a voyage
A t and fro m V a lp a ra is o and (o r) W .C .S .A . and h /c to U . K . and (or) C ont. o r to U .S .A . o r b /o . Leave to oa ll, & c., a g a in st th e r is k o f T . and (o r) O .T . Loss o n ly (wd. n itr a te o r h/o ). V a lu a tio n olause. H u ll, &o., vd . 10,0001. o r v.o.p.
The facts w ith regard to the voyage were as stated in the report o f the Steamship Kynance Company L im ite d v. Young (11 Asp. Mar. Law Cas. 596 (1911); 104 L. T. Rep. 397), as follows :
B y the terms of a charter-party dated the 5th Jan. 1910 the Kynance was chartered by Messrs. James and Alexander Brow n to load a cargo o f coal at Newcastle, N.S.W ., and there
w ith proceed to Valparaiso,
W h e re . . . h a v in g been re p o rte d to c h a rte re rs ’ agents, she s h a ll re ceive orders to discha rge th e re o r a t a safe p o rt n o t n o rth o f P isagua. . . . F r e ig h t fo r th e said cargo to be pa id a t th e ra te o f 17«. pe r to n . . . . S hould th e vessel be ordere d to a d ire o t p o r t o f discharge before s a ilin g , 6d. pe r to n re d u c tio n in above fre ig h t.
B y a charter-party dated the 17th March 1910 the Kynance, described as “ being now a t New
castle, N.S.W ., to load fo r C h ili,” was chartered to Messrs. Frederick H u th and Co.
The charter -party provided (in te r alia) th a t the ship “ a fte r delivery of present cargo fo r owners’
benefit at C h ili ” should “ proceed in ballast thence to n itra te loading p o rt and there receive orders from charterers’ agents, said orders to be given by charterers’ agent at coal discharge p o rt . . . . and there load a f u ll and complete cargo of n itra te ” fo r carriage to Europe.
The Kynance loaded her cargo of coal a t New
castle, N.S.W ., and sailed on the 27th A p ril 1910. Before sailing the charterers directed th a t she should discharge her cargo a t Valparaiso, and b ills of lading were accordingly issued m aking the cargo deliverable a t th a t port. On the 10th June 1910 she arrived a t Valparaiso, and commenced to discharge her cargo. The agents of Messrs. F. H u th and Co. then gave orders th a t she should proceed under the charter o f the 17th March 1910 to Tocopilla as the p o rt of loading fo r her n itra te cargo.
W h ile at Valparaiso an agreement was made between the captain o f the Kynance and Messrs.
J. and A. Brown, the charterers under the charter- p a rty dated the 5th Jan. 1910, that, in lieu of the discharge of the coal cargo being completed at Valparaiso, 800 or 900 tons of the cargo should be carried on by the ship to Tocopilla and discharged there, and that, as the presence of th a t cargo on the Kynance would relieve the captain fro m the necessity o f ta kin g on board ballast at Valparaiso, there Bhould be a reduction of 3s. per ton on the charter-party fre ig h t of 16s. 6d. per ton upon the 800 or 900 tons to be delivered a t Tocopilla.
P ursuant to th is arrangement, fre ig h t on the cargo discharged at Valparaiso was paid, leaving fre ig h t on the 800 or 900 tons to be paid at Tocopilla upon delivery of the said cargo a t th a t port.
On the 19th J u ly 1910 the Kynance sailed from Valparaiso w ith 800 or 900 tons o f coal on board bound fo r Tocopilla, and on the 29th J u ly 1910 she stranded o ff P unta Blanca and became a to ta l loss by perils o f the sea, the p la in tiffs alleging th a t the 800 or 900 tons of cargo was lost, and, in consequence, the fre ig h t upon it.
I n an action upon a policy o f insurance sim ila r to the policies of the 6th and the 11th May, Scrutton, J. held th a t the owners of| the Kynance and the charterers were e n title d to vary the mode of perform ing the charter-party by discharging the coal a t two ports o f the W est Coast o f South Am erica instead of a t one, and th a t the policy
MARITIME LAW CASES.
97 K.B. Div.] St e a m s h ip De n o f Ai b l i e Co. v. Mi t s u i a n d Co., &o. [K.B. Di t. covered such an adventure, and therefore theowners were entitled to recover under the policy.
Bailhache, K .C . and Maclcinnon fo r the p la in tiffs.
A tk in , K .C . and Leek fo r the defendants.
Cur. adv. vult.
Bb a y, J .— This is a claim by the p la in tiffs under a reinsurance policy subscribed by the defendant. M any o f the facts in th is case are the same as those in Steamship Kynance Company v.
Young (sup.). They are stated in the judgm ent of Scrutton, J. and need n o t be repeated here. The Kynance was insured by three policies issued by the p la in tiff company. The three policies covered the whole round voyage from Newcastle, N.S.W ., to the West Coast of South America and home to the U nited K ingdom or other ports. The firs t two, fo r 5001. each, were dated the 6th and 11th May 1910, and the th ird , fo r 10001, dated the 4th Aug. 1910. The voyages were described substantially in the same way as in the policies in the case before Scrutton, J. In the firs t two the ship was valued a t 12,0001., and the ris k was to continue fo r th ir ty days after a rriva l a t final p o rt of discharge, however em
ployed, u n til sailing on n ext voyage, whichever may firBt occur, and in the th ird the ship was valued at 10,0001., and the ris k was to commence from the expiration o f the previous policy. Under the decision o f Scrutton, J., the lia b ility of the p la in tiffs fo r the loss which occurred between V alparaiso and T ocopilla arose under the firs t two policies, and Dot under the th ird . The p la in tiffs have paid under the firs t tw o policies. They now claim to be repaid under a reinsurance policy dated the 9th Aug., subscribed by the defendant.
M r. A tk in , fo r the defendant, did not argue, and could not, in my opinion, successfully argue, th a t the loss did n o t fa ll w ith in the words of th a t policy, but he co ..tended th a t the general words m ust be lim ite d by the in te n tio n of the assured, and th a t the in te n tio n of the assured was to re in sure only his lia b ility under the th ird policy, dated the 4th Aug. T h a t is the p o in t I have to decide. The defendant relied firs t on the in stru ctio n given by the p la in tiffs to Messrs.
J. A . Pemberton and Co., and through them to Messrs. H a m ilto n , S m ith, and Co., the brokers who negotiated the insurance w ith the defendant.
The instructions are in w ritin g , and dated the 14th J u ly 1910. In these the voyage is described as at and from Valparaiso and (or) W .C.S.A.
(Weist Coast o f South America) or h/c, h u ll covered, to U n ite d K in g d o n and (or) C ontinent or U.S.A. or h/c. N o th in g is said as to the risk commencing fro m the expiration of any previous policy. So fa r thiB shows an in te n tio n th a t the risk shall commence w ith the voyage from Valparaiso i f the vessel went to Valparaiso, and serves as an indication th a t the risk is to cover something more than the risk covered by the policy of the 4th Aug. because of the absence of the lim ita tio n o f the risk in the la tte r policy.
The next im p o rta n t words are “ warranted nitra te or h/c.” This is an ind ica tio n th a t the cargo would be n itra te , b u t the addition of the words b/c, h u ll covered, shows th a t the cargo m ig h t be different, and th a t i t was intended to cover the cargo whatever i t was. Then come the words
“ valued 10,0001. o r v.o.p.” I t appears th a t the Vol. I H . , N . S.
underw riters usually, or perhaps always, require to know the amount fo r which the ship is valued, and the smaller the amount the greater, accord
in g to th e ir view, is the risk. Ten thousand pounds was the valuation of the th ird policy, and in any event a large p a rt of the risk would be under th a t policy, but, again, the addition o f the words “ or v.o.p.,” which I in te rp re t as meaning “ valued in o rig in a l policy,”
is an indication th a t the value m ig h t be some
th in g different. The instructions from Pember
ton to H a m ilto n , Sm ith, and Co. do not seem to me im portant. Then entries in the p la in tiffs ’ books were p u t in, b u t I do not th in k they carry the m atter fu rth e r. L astly, there was evidence by M r. D uderand another underw riter th a t they always did ask the broker the insured value, but they did n o t pretend to say th a t they recol
lected th is p a rticu la r occasion nor the answer th a t was given i f the question was asked.
I could n o t fin d on th is evidence th a t the question was asked, o r th a t M r. D uder was to ld th a t i t was 10,0001. Then comes the slip. T h a t does n o t mention the insured value of 10,0001., or th a t the cargo was warranted n itra te or h/c. I do not attach much importance to this, b u t i t is some indication th a t Messrs. H am ilton, Sm ith, and Co. read th e ir instructions as showing th a t th e ir p rin cip a l intended th a t the policy should cover as much as possible. In my opinion the most im p o rta n t p a rt of the evidence is the instructions of the p la in tiffs to insure, but, ta kin g i t altogether, I am unable to find th a t the in te n tio n of the p la in tiffs was to cover only th e ir lia b ility under the th ird policy. I t m ig h t be true to say th a t they expected the lia b ility to arise under the th ird policy, b u t I fin d i t is n o t true th a t th e ir in te n tio n was to cover th a t lia b ility only. There m ust be judgm ent fo r the p la in tiffs , w ith costs.
Solicitors fo r the p la in tiffs, Field, Roscoe, and Co., fo r Batesons, W arr, and Wimshurst, Liverpool.
Solicitors fo r the defendant, W illia m A. Crump and Son.
Wednesday, Dec. 6,1911.
(Before Bb a y, J.)
Steamship Denof Aiblie Company Limited
v. Mitsui and Co. Limited, and Bbitish Oiland Cake Mills Limited, (a)
Charter-party — B ills o f lading— Assignment — Cesser o f shipowner’s lia b ility — Submission to a rb itra tio n —A rb itra tio n Act 1889 (52 & 53 Viet. c. 49), s. 6.
The p la in tiffs , owners o f the steamship Den of Mains, chartered her by charter-party dated the 26th A p ril 1911 to the defendants M . and Co., to load a cargo o f beans at Vladivostock, and to proceed to a port in the United Kingdom and there deliver the cargo “ agreeably to bills o f lading.” On the KRh June a cargo o f about 6000 tons was loaded, and bills o f lading made out to the order o f the defendants or their assigns were signed by the master and handed to the defendants’ representative. They had (a) Reported by Le o n a r d C. Th o m a s, Esq., B arrister-at-
Law.
o
K .B . D iv .] St e a m s h ip De n o p Ai r l i e Co. v. Mit s t j i a n d Co., &c. [K .B . Di v.
had, hy a contract dated the 27th A p r il 1911, sold the cargo to the other defendants the B.
Company on the terms o f a “ basis delivered ” contract, by clause 10 o f which the contract was to be void as regarded any portion shipped which m ight not arrive. On the 12th June the defen
dants M . and Co., under the contract o f the 27th A p ril, declared to the B. Company that-the beans had been shipped by steamship Den o f Mains. On a rriv a l o f the vessel at Liverpool, the port of discharge, M . and Co. handed to the B. Company the bills o f lading indorsed against a payment. When the discharge had been com
pleted i t tvas alleged that there was a shortage of 171 bags, and, the B. Company having paid only in respect o f the quantity actually delivered, M. and Co. instructed them to make a corre
sponding deduction f r om the fre ig h t, but the p la in tiffs refused to acknowledge the claim fo r short delivery. A dispute having thus arisen, M. and Co. gave notice that they demanded an a rb itra tio n under a clause in t he charter-party which provided fo r a rb itra tio n “ by arbitrators, one to be appointed by each o f the parties to this agreement, i f necessary the a rbitrators to appoint a th ird ,” and fo rm a lly required the p la in tiffs w ith in seven clear days to appoint
their arbitrator.
The p la in tiffs d id not appoint an a rb itra to r, and the defendants after the expiry o f the seven days gave notice o f the appointment o f a gentle
man to act as sole arb itra to r.
On « summons fo r directions taken out by the p laintiffs :
Held, (1) that there was nothing in the contract or the circumstances o f the case to satisfy the court that i t was the intention o f the shipowners and charterers that the responsibility of the form er under the charter-party had ceased; and (2) that the submission to a rb itra tio n came w ith in
sect. 6 of the A rb itra tio n Act 1889.
Commercial Court.
Summons fo r directions before B ray, J.
adjourned to open co u rt fo r argument.
The facts and arguments are sufficiently stated in the w ritte n ju d g m e n t of B ray, J.
Bailhache, K .C . and Mackinnon fo r the p la in tiffs.
A tkin , K.C . and Leek fo r the defendants.
Br a t, J .— The summons fo r fu rth e r directions in this case asks th a t the defendants M its u i and Co. L im ite d be restrained u n til a fte r the bearing of this action fro m proceeding w ith a certain a rb itra tio n ; alternatively, th a t leave be given to the p la in tiffs to revoke the submission to a rb itra tio n , and, alternatively, th a t the notice dated the 10th Nov. 1911, p u rp o rting to be given by H . D. B ly th and Co. on behalf of the defendants, M its u i and Co. L im ite d , appointing M r. Howard Glover sole a rb itra to r be set aside, and th a t the p la in tiffs have seven days in which to appoint th e ir a rb itra to r. The facts are shortly as fo llo w s : The defendants, M its u i and Co. L im ite d , whom I w ill call the firs t defendants, on the 28th A p r il 1911 chartered from the p la in tiffs the steamship Ben o f Mains, to load a cargo of beans at Yladivostock and to proceed to a p o rt in the U n ite d K in g d o m or other ports and there discharge. The charter- party contained an a rb itra tio n clause, to w hich I shall have to refer, w ith other terms, later. On
the 27th A p ril the firs t defendants, by a contract of th a t date, sold 6100 tons o f beans, more or less, to the defendants, the B ritis h O il and Cake M ills, whom I w ill call the second defendants, upon terms which I shall also refer to. On the 10th June, the cargo (about 6100 tons) having been loaded, two b ills of lading com prising the whole cargo were signed by the master and handed to the firs t defendants’ representative. They were made out to the order of the firs t defendants or to th e ir assigns. On the 12th June the firs t defen
dants under the contract of the 27th A p ril declared to the second defendants th a t the beans had been shipped by the steamship Den of Mains. On the a rriva l of the Den of M ains at Liverpool, the port of discharge, the firs t defen
dants, under clause 4 of the contract, handed to the second defendants the bills of lading duly indorsed against a payment. W hen the discharge had been completed i t was alleged th a t there was a shortage c f 171 bags representing about fourteen tons, and a difference in weight of th ir ty six t >ns.
The second defendants have only paid in respect of the q u a n tity actually delivered, and the firs t defendants, in consequence of the shortage, instructed the second defendants to deduct from the fre ig h t a sum of 103Z. Is. 6d., the value o f the bags alleged to be short delivered, and th is was done.
The p la in tiffs refused to acknowledge the firs t defendants’ claim fo r short delivery, and eventu
a lly the firs t defendants gave notice th a t they demanded a rb itra tio n under the charter-party, and on the 1st Nov. gave a fo rm a l notice to G albraith, Pembroke, and Co., on behalf o f the pla in tiffs, th a t they had appointed M r. Glover th e ir a rb itra to r, and fo rm a lly required the pla in tiffs w ith in seven clear days to appoint th e ir
a lly the firs t defendants gave notice th a t they demanded a rb itra tio n under the charter-party, and on the 1st Nov. gave a fo rm a l notice to G albraith, Pembroke, and Co., on behalf o f the pla in tiffs, th a t they had appointed M r. Glover th e ir a rb itra to r, and fo rm a lly required the pla in tiffs w ith in seven clear days to appoint th e ir