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Gibson v Small and Others

Nominate Series English Reports Cited authorities 5 Cited in 24 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date03 June 1853
Date03 June 1853
CourtHouse of Lords

English Reports Citation: 10 E.R. 499

House of Lords

Anthony Gibson,-Plaintiff in Error
Robert Small and Others,-Defendants in Error

Mews' Dig. xiii. 1154. S.C. 17 Jur. 1131; and, in Ex. Ch., 16 Q.B. 128; 20 L.J. Q.B. 152; 15 Jur. 325. On point as to time policy, considered and supplemented in Thompson v. Hopper, 1856, 6 E. and B. 172; and Fawcus v. Sarefield, 1856, 6 E. and B. 192; and adopted in Dudgeon v. Pembroke, 1877, 2 A. C. 284. As to warranty on policy on voyage, See Biccard v. Shepherd, 1861, 14 Moo. P.C.C. 471; Readhead v. Midland Ry. Co., 1867, L.R. 2 Q.B. 435; Stanton v. Richardson,.1872, L.R. 7 C.P. 435. Cf. also Merchant Shipping Act, 1894, s. 458; Steel v. State Line S.S. Co., 1877, 3 A. C. 77; Hedley v. Pinkney and Sons S.S. Co. (1892), 1 Q.B. 58; and Gilroy Sons and Co. v. Price and Co. (1893), A. C. 56.

Insurance - Time - Policy - Implied Warranty of Seaworthiness.

[353] ANTHONY GIBSON,-Plaintiff in Error; ROBERT SMALL and Others,- Defendants in Error [Dec. 9, 10, 1852; April 28, June 3, 1853]. [Mews' Dig. xiii. 1154. S.C. 17 Jur. 1131; and, in Ex. Ch., 16 Q.B. 128; 20 L.J. Q.B. 152 ; 15 Jur. 325. On point as to time policy, considered and supplemented in Thompson v. Hopper, 1856, 6 E. and B. 172; and Fawcus v. Sarefield, 1856, 6 E. and B. 192; and adopted in Dudgeon v. Pembroke, 1877, 2 A. C. 284. As to warranty on policy on voyage, see Biccard v. Shepherd, 1861, 14 Moo. P.C.C. 471; Eeadhead v. Midland Ey. Co., 1867, L.R. 2 Q.B. 435 ; Stanton v. Richardson, .1872, L.R. 7 C.P. 435. Cf. also Merchant Shipping Act, 1894, s. 458; Steel v. State Line S.S. Co., 1877, 3 A. C. 77 ; Hedley v. Pinkney and Sons S.S. Co. (1892), 1 Q.B. 58; and Gilroy Sons and Co. v. Price and Co. (1893), A. C. 56.] Insurance-Time-Policy-Implied Warranty of Seaworthiness. By the law of England, in a time-policy effected on a vessel then at sea, there is no implied condition that the ship should be seaworthy on the day when the policy is intended to attach. Per Lord Campbell.-There is not, in a time-policy effected on a vessel then abroad, any implied condition whatever as to seaworthiness; not even as to the time when the vessel sailed on the voyage during which the policy attaches. Quaere? Whether there is any such implied condition in a time-policy effected on an outward-bound ship lying in a British port where the owner resides. A policy of insurance was effected in London on the 27th of November, 1843, on a ship then abroad, " lost or not lost, in port and at sea, in all trades and services whatsoever and wheresoever, during the space of twelve calendar months, commencing on the 25th September, 1843, and ending on the 24th September, 1844, both days included." To a declaration for a total loss on the 14th October, 1843, by perils of the sea, the defendant pleaded that " ship was not, at the time of the commencement of the risk in the policy of insurance mentioned, nor at the making of the said insurance, nor on the said 25th September, 1843, in the declaration mentioned, seaworthy, or in a fit and proper condition to go to sea; but, on the contrary thereof, was wholly unseaworthy." It appeared in evidence, that on the 24th of September, 1843, the ship was at sea, seriously damaged, and in that state it succeeded in making Madras in the course of the following day. The verdict found the plea to be proved in fact: Held (affirming the judgment of the Court of Exchequer Chamber, which had reversed a previous judgment of the Court of Queen's Bench), that this plea did 499 IV H.L.C., 364 GIBSON V. SMALL [1852-53] not afford a defence to the action, for that there was no implied condition that the ship should be seaworthy on the day when the policy was intended to attach. In this case an action had been brought in the Court of Queen's Bench by Small and Others v. Gibson, on a policy [354] of insurance effected on the 27th of November, 1843, by them, as agents for Antonio Hypolite Gigual, on the ship " the Susan, lost or not lost, in port or at sea, in all trades and services whatsoever and wheresoever, during the space of twelve calendar months, commencing on the said 25th day of September, 1843, and ending on the 24th day of September, in the year 1844, both days included." Gibson pleaded four pleas, of which the second alone is material: " That the said ship or vessel, in the said declaration mentioned, was not, at the time of the commencement of the said risk in the said policy of assurance mentioned, nor at the making of the said insurance, nor on the said 25th day of September, in the year of our Lord 1843, in the said declaration mentioned, seaworthy, or in a fit and proper condition safely to go to sea ; but, on the contrary, was wholly unseaworthy ; " verification. Replication de injurid, and issue thereon. At, the trial of the cause at the London Sittings after Trinity Term, 1848, it appeared that, about the beginning of September, 1843, the ship sailed from Madras for the Mauritius, with 288 coolies on board; encountered very bad weather, and put into Trincomalee, which place the captain was ordered to quit or to go into quarantine, as the small-pox was reported to be on board his vessel. He preferred the former alternative, and determined to try to return to Madras, in order to get repaired. He encountered bad weather on the voyage, and the vessel became still more damaged, but he arrived at Madras on the 25th of September; so that on the day on which the risk was to attach, the vessel was at sea, seriously injured, and endeavouring to make a port to get repaired. The necessary repairs could not be effected at Madras, and the captain therefore tried to reach Coringa, but met other misfortunes of a similar sort to those before experienced, and was obliged [355] to put into Masulipatam. The coolies refused to stay on board any longer, the surveyors reported against the possibility of repairing the vessel, except at a very considerable expense, and finally it was sold, and the owners gave notice of abandonment. The jury returned a verdict for the defendant, finding "that the said ship or vessel in the said declaration mentioned was not, at the time of the commencement of the said risk in the said policy of insurance mentioned, nor at the making of the said insurance, nor on the said 25th day of September, 1843, in the declaration mentioned, seaworthy, or in a fit and proper condition safely to go to sea, but, on the contrary thereof, was at those times, and each of them respectively, wholly unseaworthy." A motion was afterwards made to enter judgment for the plaintiff, non obstante veredicto, but the rule was discharged and judgment given for the defendant (16 Q. B. Rep. 128). A writ of error was then brought in the Exchequer Chamber, when the judgment of the Court of Queen's Bench was reversed, and judgment was given for the plaintiff non obstante veredicto (Id. 141). The case was then brought by writ of error to this House. The judges were summoned, and Lord Chief Baron Pollock, Mr. Baron Parke, Mr. Baron Alderson, Mr. Justice Maule, Mr. Justice Erie, Mr. Baron Platt, Mr. Justice Williams, M^. Justice Talfourd, and Mr. Baron Martin attended. The Attorney-General (Sir F. Thesiger) and Mr. J. P. Wilde, for the plaintiff in error.-The question here is whether, in a time-policy as in a voyage-policy, it is an implied condition that the vessel [356] insured is seaworthy at the commencement of the risk. There has not as yet been any express decision on the point; but the principles that must govern the case are clearly settled. Seaworthiness is a condition precedent to the validity of a policy. In Park on Insurance (ch, xi. p. 322, 7 ed.), it is said: " There is in the contract of insurance a tacit and implied agreement that everything shall be in that state and condition in which it ought to be; and therefore it is not sufficient for the insured to s,ay that he did not know that the ship was not seaworthy, for he ought to know that she was so at the time he made the insurance. The ship is the substratum of the contract between the parties ; a ship not capable of performing the voyage is the same as if there were no ship at all; and although the defect may not be known to the person insured, yet the very foundation of the contract being gone, the law is clearly in favour of the under- 500 GIBSON V. SMALL [1852-53] IV H.L.C., 357 writer; because such a defect is not the consequence of any external misfortune, or any unavoidable accident arising from the perils of the sea, or any other risk against which the underwriter engages to indemnify the person insured." Marshall on Insurance (Bk. i. ch. v. s. 1, p. 152, 3 ed.), and Arnould on Insurance (1 Arn. on Mar. Ins. 653, 670), are to the same effect. This statement of the principle is justified by the authority of Douglas v. Scougall (4 Dow. 269), Annen v. Woodman (3 Taunt. 299), Wedderburn v. Bell (1 Camp. 1), Christie v. Secretan (8 T. K. 192, per Lord Kenyon and Mr. Justice Lawrence), Lee v. Beach (Park on Ins. ch. xi. 342), in the last of which cases the defect was latent; but Lord Mansfield held the underwriter to be discharged by the mere fact of unseaworthiness, however innocent the owner was of knowing [357] and concealing that fact. This doctrine is not impeached by the case of Mills v. Roebuck* Lord Ellenborough says, [358] in Hay wood v. * Mills v. Roebuck, in the Exchequer (Park on Ins. 3 ed. 222, where it is said that judgment was given for the underwriters. But in Park on Ins. 7 ed. 335, the judg ment is stated to be for the assured. See also Marshall on Ins. 154 and 156, n.).- This was an action on a policy of insurance, lost or not lost, at and from the Leeward Islands to London, on ship and goods in the " good ship or vessel called the Mills Frigate, beginning the adventure on the goods from the loading thereof on board the said ship at St. Kitts, and upon the ship from her arrival at the Leeward Islands." The ship was warranted to sail on or before...

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