Aubert and Another v Gray
| Jurisdiction | England & Wales |
| Judgment Date | 23 April 1891 |
| Date | 23 April 1891 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 62
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 3 B. &. S. 32. L. J. Q. B. 50; 7 L. T. 469; +9 Jur. N. S. 714; 11 W. R. 27. Referred to Edinson Gold Mining Company v, Alliance Assurance Company, 1901 2 K. B. 925; 1902 2 K. B. 489; 1904 A. C. 359. Adopted Janson v, Driefontein Consolidated mines 1902 A. C. 498.
[163] aubert and another against gray. [Tuesday, April 23d], [1861].-Marine insurance. Eestraints of princes, &c. Hostilities.-1. The clause in an ordinary policy of marine insurance on a ship and goods which insures against losses occasioned by " arrests, restraints, and detainraents of all kings, princes, and people, of what nation, condition or quality soever," applies to a seizure of the ship in consequence of an embargo laid on her by the Sovereign of the country of the assured, for the purpose of carrying on a war with another power; per Crompton and Blackburn JJ. in this Court: and affirmed in the Exchequer Chamber, per Erie C.J., Williams and Keating JJ., and Bramwell B.; dubitante Pollock C.B.-2. There is a distinction in this respect between an embargo, in a time when there is peace between the countries of the insurer and the assured, laid on for a purpose wholly unconnected with hostility either existing or expected, and an embargo connected with such hostility : per the same Judges in the Exchequer Chamber.-3. Quaere, if the act of seizure was a lawful act under the municipal law of the country of the assured? per the same Judges in the Exchequer Chamber. [Affirmed in Exchequer Chamber, 3 B. & S. 169; 32 L. J. Q. B. 50; 7 L, T. 469 ; 9 Jur. N. S. 714; 11 W. R. 27. Referred to, Robinson Gold Mining Company v. Alliance Assurance Company, [1901] 2 K. B. 925; [1902] 2 K. B. 489; [1904] A. C. 389. Adopted, Janson v. Driefontein Consolidated Mines, [1902] A. C. 498,] The declaration alleged that the plaintiffs, on the 3d October, 1859, according to the usage and custom of merchants, caused to be made a certain policy of insurance, purporting thereby, and containing therein, that the plaintiffs, by the name of Aubert, Powell & Co., or as agents, as well in their own name as for and in the name and names of all and every other person or persons to whom the same did, should or might appertain, in part or in all, did make assurance, and did cause themselves and them and every of them to be insured, lost or not lost, at and from London to Alicante, with liberty to call at any intermediate port or ports, including all risk of craft, upon any kind of goods and merchandizes, and also upon the body, tackel, apparel, ordnance, munition, artillery, boat and other furniture of and in the good ship or vessel called The " Jovellanos," whereof was master under God for the said voyage , or whosoever else should go for master in [164] the said ship, or by whatsoever other name or .names the said ship, or the master thereof, was or should be named or 3 B ft i. 185. AUBERT V. GRAY 63 called, beginning the adventure upon the goods and merchandizes from the loading thereat aboard the ship as above, upon the ship &c., and should so continue and endure during her abode there upon the ship &c.; and, further, until the ship, with all ber ordnance, taokel, apparel &c., and goods and merchandizes whatsoever, should be arrived at ax above upon the ship &c. until the had moored at anchor twenty-four hours in good safety, and upon the goods and merchandizes until the same should be there discharged and safely landed. And it should be lawful for the ship &c., in the voyage, to proceed and sail to and touch and stay at any ports or places whatsoever and wheresoever without prejudice to the insurance. The ship &c., goods and merchandizes, &c., foe so much as concerns the assured, by agreement between the assured and assurers in the policy, were and should be valued at 18001. on B. B. Y. thirty bales of earpet so valued, general average and charges as per foreign statement, if 10 made up. Touching the adventures and perils which they, the assurers, were contented to bear, and did take upon themselves in the voyage, they were of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, prince*, and people, of what nation, condition or quality soever, barratry of the master and mariners, and of all other perils, losses and misfortunes that have or should come to the hart, detriment or damage of the goods and merchandizes, and ship &c., or any part thereof; and, in case of any loss or misfortune, it should be lawful to [168] the assured, their factors, servants and assigns, to sue, labour and travel for, in and about the defence, safeguard and recovery of the goods and merchandize!, and ship &c., or any part thereof, without prejudice to the insurance, to the charges whereof they, the assurers, would contribute each one according to the rate and quantity of his sum therein assured. And it was agreed by them, the assurers, that the said writing or policy of assurance should be of as much force and effect as the surest writing or policy of assurance theretofore made in Lombard Street, or in the Kojral Exchange, or elsewhere in London. And so they, the assurers, were contented, and did thereby promise and bind themselves, each one for his own part, their heirs, executors and goods to the assured, their executors, administrators and assigns, for the true performance of the premises, confessing themselves paid the consideration due unto them for the said assurance by the assured at and after the rate of 20 shillings per cent. And by a certain memorandum, thereunder written, corn, flab, salt, fruit, flour and seed were warranted free from average, unless general, or the ship should be stranded; sugar, tobacco, hemp, flax, hides and skins were warranted free from average under 51. per cent.; and all other goods, also the ship and freight, were warranted free from average under 31. per cent., unless general, or the ship should be stranded. And thereupon, in consideration of the premises, and that the plaintiffs had paid to the defendant the sum of 20s. aa a premium or reward for the insurance of 1001. of and upon the premises in the policy mentioned, the defendant then became and was an insurer, and duly subscribed the said policv of insurance as auch insurer of the sum of 1001., upon [166] the said goods in the said ship or vessel, for the said voyage in the said policy of insurance mentioned. The declaration then averred that the goods mentioned in the policy, to wit, thirty bales of carpets, of great value, had been and were shipped and loaded at London aforesaid, in and on board the ship or vessel in the policy mentioned, to be carried and conveyed thereon on the voyage in the policy mentioned, and that they the plaintiffs, one Bonifacio fiuiz de Velasco, and certain persons carrying on business under the name, style or firm of Bonifacio Buiz de Velasco, some or one of them, were then and continually thence, until and at the time of the loss &c., interested in the goods in the policy mentioned and so shipped on board the ship as aforesaid, to a large value and amount, to wit, the value and amount of all the moneys by them ever insured or caused to be iuiured thereon : and that the insurance was made by Aubert, Powell & Co. for the use and benefit and on the account of the person or persons so interested as aforesaid. It then alleged that the said ship or vessel, with the said goods on board thereof, departed and set sail from London aforesaid on her said voyage in the said policy mentioned : and that afterwards, and during the continuance of the risk in the policy mentioned, the goods so insured as aforesaid, by perils, losses and misfortunes insured against by the said policy, became and were greatly damaged, injured, spoiled and deteriorated in value, and thereby and by reason of the premises the person or persona ao interested as aforesaid sustained an average damage or loss on the goods 64 AUBERT V. GRAY 3 B. & 8 187. to a much larger amount than 31. per cent, on all the money insured thereon, to wit, to the amount of 311, Oa. 7d. by the hundred for each and every 1001. insured thereon by the plaintiffs; whereby the defendant then became liable to [167] pay to the person or persona so interested as aforesaid a large sum of money, to wit, the sum of 311. Os. 7d. being his the defendant's proportion of the said average loss for and in respect of the said sum of 1001. so by him insured as aforesaid : and averred that the person or persons so interested as aforesaid did afterwards, by reason and in consequence of the said loss so occasioned as aforesaid by the said perils, losses and misfortunes so insured against, by their factors and servants, sue, labour and travel for, in and about the defence, safeguard and recovery of the goods, and in so doing did necessarily expend a large sum of money, whereby the defendant, according to the terms of the policy, then became liable to pay to the person or persons so interested as aforesaid a further sum of money, to wit, the sum of 61., being the rateable part or proportion of the expense aforesaid which the defendant ought to have paid in reapect of the insurance aforesaid : concluding with the averment that all things had been done and happened &c.: and the plaintiffs claimed 501. Plea. Before and at the time of the making of the policy, and thence continually until and at the time of the losses, the person or persons so interested in the goods, and for whose use and benefit, and on whose account, the insurance was made were, and each of them was, Spaniards, and subjects of the Queen of Spain, and domiciled in the kingdom of Spain. And that, before the losses, or any of them, the ship, in the course of the voyage, arrived at Corurina, in the kingdom of Spain...
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