Cory v Burr
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1883 |
| Date | 30 April 1883 |
| Court | House of Lords |
House of Lords
Lord Chancellor (Seiborne), Lords Blackburn, Bramwell, and Fitzgerald
Cory v. Burr
Kleinwort v. ShepardENR 1 E. & E. 447
Powell v. HydeENR 5 E. & B. 607
Dean v. HornbyENR 3 E. & B. 180
Earle v. RowcliffeENR 8 East. 126
Havelock v. HancillENR 3 T. R. 277
Naylor v. PalmerENR 10 Ex. 382
Lockyer v. OffleyENR 1 T. R. 252
Marine insurance Barratry Warranty free from capture and seizure
MARITIME LAW CASES. 109 Q.B. DIV.] CORY V. BURR. [H. OF L. HOUSE OF LORDS. April 27 and 30, 1883. (Before the Lord Chancellor (Seiborne), Lords Blackburn, Bramwell, and Fitzgerald.) Cory v. Burr, (a) ON APPEAL FROM The COURT Of APPEAL IN ENGLAND. Marine insurance - Barratry - Warranty "free from capture and seizure " - Proximate cause of lass - Smuggling. In a policy of marine insurance a warranty "free from capture and seizure" applies not only to capture or seizure by belligerents, but to any seizure, even if it be the result of a barratrous act of the matter. In a time policy the ordinary perils, including " barratry of the master," were enumerated, and the subject-matter of the insurance was " war-ranted free from capture and seizu e, and the consequences of any attempt thereat." During the continuance of the policy the ship was seized and detained by the Spanish authorities in consequence of the barratrous act of the master in smuggling. Held (affirming the judgment of the court below). that such seizure was covered by the warrantry, and that the underwriters were not liable. Semble (per Lords Blackburr and Bramwell), that there is no rule of insurance law that where barratry is the remote cause of a loss it is to be looked to rather than the immediate cause. This was an appeal from a judgment of the Court of Appeal (Lord Coleridge, C.J., Brett and Cotton, L.JJ.) reported in 4 Asp. Mar. Law Cas. 559, 9 Q. B. Div. 463, and 47 L. T. Rep. N. S. 181, affirming a judgment of the Queen's Bench Division (Field and Cave, JJ.), reported in 4 Asp. Mar. Law Cas. 480, 8 Q. B. Di7. 313, and 45 L. T. Rep. N. S. 713, upon a special case. The action was brought by the appellants, the owners of the steamship Rosslyn, against the respondent, who was one of the underwriters of a time policy of insurance, to recover the expenses they had incurred in obtaining the release of the ship, which had been seized by the Spanish revenue authorities under circumstances which appear in the head-note in the judgment of Lord Blackburn. Webster, Q.C. and Tyser (Myburgh, Q.C. with them) appeared for the appellants, and contended that the warranty in the policy applied only to capture or seizure by belligerents. This seizure was not within the warranty, it was the result of an act of barratry, which is one of the perils insured against, and was in fact a continuing act up to the seizure. If barratry was not within the (a) Reported by C. E. Malden, Esq., Barrister-at-Law. 110 MARITIME LAW CASES. H. OF L.] CORY V. BURR. [H. OF L. warranty, then a seizure which is the consequence of a ?? act cannot be either. They referred to Powell v. Hyde, 5 E. & B. 607: Kleinmort v. Shepard, 1 E. & E. 447; 28 L. J. 147, Q.B.; lonides v. Universal Marine Insurance Company, 1 Mar. Law Can. O. S. 353; 8 L. T. Rep. N. S. 705; C. B. Rep. N. S. 259; Vallejo v. Wheeler, 1 Camp. 143; Roscow v, Corson, 8 Taunt. 684; Havelock v. Hancill, 3T. R. 277; Heyman v. Parish, 2 Camp. 149; Arcangelo v. Thompson, 2 Camp.620; Hahn v. Corbett, 2 Bing. 205 : Livie v. Janon, 12 East. 648; and the following American authorities : Waters v. Merchants Louisville Insurance Company, 11 Peters, 213; American Insurance Company v. Durham, 12 Wend. N.Y. Rep. 463; 15 Id. 9; Suckley v. Delafield, 2 Cainas, 222. Cohen, Q.C. and Barnes, who appeared for the respondent, were not called upon to address the House. At the conclusion of the arguments for the appellants their Lordships gave judgment as follows: The Lord Chancellor (Seiborne). - My Lords: This is an appeal from a unanimous judgment of the Court of Appeal affirming a unanimous judgment of the Queen's Bench Division; and I believe that all your Lordships agree that it is not necessary to call upon the counsel for the respondent. I am by no means sure that it might not be sufficient for me to say simply that I agree with the judgments given by Field and Cave, J J., and also in the reasons which they gave for those judgments, and in the reasons which were given in the Court of Appeal. I will, however, make one or two observations upon the principal points on which the case depends. Everything depends upon the construction of the words of the warranty in the policy, the warranty being " free from - capture and seizure, and the consequences of any attempts thereat." The first question which has been considered in the argument has been, what is the meaning of the words "capture or seizure?" "Warranted free," clearly means that the insurers are not to be liable for the things to which the warranty applies. I own that I should have hesitated, even if there had been no authority, before I should have been brought to agree with the view which was thrown out in the course of the argument, and which Brett, L.J. seemed to think might have influenced him if there had not been authority against it - I mean the view that "capture and seizore" in such a warranty must be taken to mean prima facie belligerent capture and seizure only. My reasons for saying so ar9 that the word " seizure " is used as well as the word " capture." I am disposed to agree that if the word "capture" had stood alone it might Lave appeared to point to a belligerent capture, but the addition of the word "seizure" is only officious, as I read the warranty, by supposing that it is to exclude that narrow construction of the word "capture," and to let in other "seizures," such as Cotton, L.J. suggests, by means of the revenue laws of a foreign state. The facts of this case show what the nature and effect of such a seizure is. The ship was seized in every sense we can put upon the word "seized." It was taken forcible possession of, and that not for a temporary purpose, not as incident to a civil remedy and the enforcement of a civil right, not as security for the performance of some duty or obligation by the owners of the ship, but it was carried into effect in order to obtain a sentence of condemnation and confiscation of the ship; and the case states that that would have been the result of the seizure which...
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