Aitchison and another v Lorne
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1879 |
| Date | 31 July 1879 |
| Court | House of Lords |
House of Lords
Lord Chancellor (Cairns), Lords Hatherley, O'Hagan, Blackburn and Gordon
Aitchison and another v. Lorne
Nicholson v. Chapman 2 H. B. 254
Hartfort v. Jones 1 Lord Ray, 393
Irving v. Manning 1 H. of L. Cas. 287
Moss v. SmithENR 9 C. B. 94
Le Cheminant v. PearsonENR 4 Taunt. 367
Cary v. King Cas. temp. Hardwicke, 304
Kidston v. The Empire Marine Insurance Company L. Rep. 15 C. P. 535 15 L. T. Rep. N. S. 12 L. Rep. 2 C. P. 357 16 L. T. Rep. N. S. 119 3 Mar. Law Cas. O. S. 400
Marine insurance — Partial loss — Cost of repairs
168 MARITIME LAW CASES. H. of L.] Aitchison and Another v. Lohre. [H. of L. HOUSE OF LORDS. Reported by C. E. Malden, Esq., Barrister-at-Law July 15,18, and 31,1879. (Before the Lord Chancellor.(Cairns), Lords HATHERLEY, O'HAGAN, BLACKBURN and GORDON.) AITCHISON AND ANOTHER v. LORNE. ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. Marine insurance - Partial loss - Cost repairs - Allowance of one-third new for old - Suing and labouring clause - Salvage expenses. A policy of marine insurance is not a perfect con-tract of indemnity, hut must he taken with. certain well-established qualifications, which must be applied, even if the assured thereby receives more than a perfect indemnity. An assured, whose ship is damaged, is not hound to claim for a total loss where repair is practicable, but may repair her, and even where her value when repaired is less than the cost of repair, may recover from the assurers their- proportion of the reasonable cost of repair less one-third new for old, although such proportion exceed the amount the assurers would he liable for if they paid for a total loss. Under the sue and labour clause in a policy of insurance, the assured may recover expenses incurred by themselves or their agents for the hire of persons expressly engaged by them to avert loss to the insurers, but cannot recover money paid to salvors giving assistance to the ship to save her from perils of the seas, such salvors not being agents of the assured, and having no contract with the assured, but acquiring a lien on the ship by the law maritime. A claim for salvage is recoverable directly as a loss by the peril insured against, and the underwriters are not liable in respect thereof beyond the amount insured. The appellants insured the respondent for 1200l, upon a ship valued at 2600l. The policy contained the usual suing and labouring clause. The ship suffered damage from perils of the sea, and was brought into port by salvors not hired by the assurred but having and enforcing a claim against the ship by the law maritime. The owner elected to repair, and the result of the repairs was to make the ship, which was an old one, more valuable than she had been at the time of the insurance. Held (affirming the judgment of the court below), that the measure of the loss was the cost of the repairs, with the usual allowance of one-third new for old; and that consequently the assured was entitled to recover up to the full amount insured for, though it might be more than the amount payable on a total loss with benefit of salvage. Held, further (reversing the judgment of the court below), that the assured could not recover, under the suing and labouring clause, a proportion of the salvage expenses in addition to the amount for which the policy was underwritten. This was an action brought by the respondent against the appellants, on a policy of insurance, to recover the cost of the injuries sustained by his ship the Crimea from perils of the sea. In Sept. 1872 the plaintiff effected a policy on his ship, which was valued at 2600l., for 1200/., for a voyage out and home from the Clyde to Quebec or St. John's, and thence to any port in the United Kingdom. The policy contained the usual suing and labouring clause. On the homeward voyage, in Jan. 1873, the ship met with heavy weather, and was towed into Queenstown by the steamship Texas in a waterlogged condition. The Admiralty Court of Ireland awarded the Texas 8001. for this service; The value the Crimea in her then condition was stated to be 9981., and the cargo was worth between 3000l. and 40002. The ship, which was fifteen or sixteen years old, was repaired under contract for 2982l., and was thus made of greater value than she had been at the commencement of the voyage. The plaintiff claimed 1707l. as the amount due from the defendants, but they contended that they were not liable for more than a total loss with benefit of salvage, deducting from that the ship's proportion of salvage and general average, and they paid 1080l. into court. A special case was stated, which was argued in the Queen's Bench Division before Mellor and Lush, JJ., who gave judgment for the plaintiff for the sum of 120l. MARITIME LAW CASES. 169 H. of L.] Aitchison and Another v. Lohre. [H. of L. beyond the amount paid into court, as reported in 3 Asp. Mar. Law Cas. 445, L. Rep, 2 Q. B. Div. 501, and 36 L. T. Rep. N.S. 794, where the special case is set out in fall. Both parties appealed, and the Court of Appeal (Bramwell, Brett, and Cotton, L.JJ.) affirmed the judgment of the Queen's Bench Division on the main question; but held also, reversing the Queen' Bench Division upon this point, that the plaintiff was entitled to recover a proportion of the salvage expenses under the suing and labouring clause in addition to the amount for which the policy was underwritten, as reported ante p. 1I, and in L. Rep. 3 Q. B...
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