Ionides v The Universal Marine Insurance Company
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1863 |
| Date | 02 May 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 445
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 32 L. J. C. P. 170; 8 L. T. 705; 10 Jur. N. S. 18; 11 W. R. 858. Referred to, Marsden v. City and County Assurance Company, 1866, L. R. 1 C. P. 240; Dent Smith, 1869, L. R. 4 Q. B. 452; Inman Steamship Company v. Bischoff, 1822, 7 App. Cas. 676. Approved, Anderson v. Marten, [1908] A. C. 340.
ionides v. the universal marine insurance company. May 2nd, 1863. 7'7- iKrj .3fj* . [S. C. 32 L. J. C. P. 170; 8 L. T. 705; 10 Jur. N. S. 18; 11 W. R. 858. Referre^g; to, Marsdeu v. City and County Assurance Company, 1866, L. R. 1 C. P. 240; Dent v(n Smith, 1869, L. R. 4 Q. B. 452 ; Inman Steamship Company v. Hisckoff, 1882, 7 App. Gas. 676. Approved, Anderson v. Marten, [190] A. C. 340.] Goods consisting of 6500 bags of coffee, valuer! at 25,0001., on board the ship " Liiiwood," were insured on a voyage from Rio de Janeiro to New Orleans, and thence to New York; the policy containing the following warranty,-" Warranted free from capture, seizure, and detention, and all the consequences thereof or of any attempt thereat, and free from all consequences of hostilities, riots, or commotions."- At the time of the ship's departure from Rio, the Northern States of America (called " federals ") were at war with the Southern States {called " confederates "). The ship 446 IONLDES V. THE UNIVERSAL MARINE INSURANCE CO. M C. B. (N. 3.)260. òwas a federal ship: the cargo the property of neutrals. On his voyage from New Orleans to New York, the master of the " Linwood," being out of his reckoning, and supposing that he had passed Cape Hatteras, a dangerous headland on the coast of Nofth Carolina, instead of keeping his course N. N. E., changed it to W., and consequently went on shore about ten miles south of the Cape, without any possibility of getting off again. It appeared that until recently a light had always been kept burning at Cape Hatteras, which in ordinary weather was visible at a distance of irom 20 to 30 miles; but that, North Carolina being at this time in the possession c& the confederates, they had extinguished the light for tho purpose of harrassing the federal shipping.-The " Linwood " being thus on shore a short distance from the land, the confederate officers came off to her and took the captain and his papers on shore, and detained him and ultimately the rest of the crew on shore as prisoners.-The wreck took place on the 17th of July. On the 18th, the weather was rough, and nothing could be done. But, on the 19th, certain persons called " wreckers," or " salvors" (officers appointed by the federal government for that purpose) came down and got 150 bags of coffee on shore (apparently) undamaged : and it was proved that they might have got on shore 1000 more, but for the interference of the confederate troops, who wanted to obtain the cargo for themselves. On the 20th, the weather becoming again boisterous, the ship broke up, and all the cargo on board was lost:-Held that, under these circumstances, the insurers were liable as for a partial loss in respect of the coffee which remained on board incapable of being saved,-the primmate cause of the loss being a peril of the sea, and not the hostile act of the confederate troops in extinguishing the light: but that, as to so much of the cargo as was actually saved, and as to that which would have been Saved but for the interference of the troops, this was a loss by a "consequence of hostilities," within the warranty, and for this the insurers were not liable. This was an action on a policy of insurance. The first count of the declaration set forth a policy made by the defendants for 30001.(a), upon 6500 bags [260] of coffee valued at 25,0001., warranted free from particular average, unless the ship should be stranded, sunk, or burnt,-general average payable as per foreign statement,-warranted also " free from capture, seizure, and detention, and all the consequences thereof, or of any attempt thereat, and free from all consequences of hostilities, riots, or commotions," by the ship or vessel called the "Linwood," lost or not lost, at and from Rio de Janeiro to New Orleans and [or| New York, calling at Belize for orders, including the risk of craft. Covenant, that the said insurance should commence upon the goods and merchandise on. board the said ship from the loading of the said goods or merchandise on board the said vessel at as above and until the said goods or merchandise should be discharged or safely landed; and that it should be lawful for the said ship or vessel to proceed and sail to and touch and stay at any ports or places whatsoever iti the course of her said voyage for all necessary purposes, without prejudice to the said insurance. And, touching the adventures and perils which the defendants were made liable to by the said insurance, they were declared to be of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter-mart, surprisals, takings at aea, arrests, restraints, and detainments of all kings, princes, and people of what nation, condition, or quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that had or should come [261] to the hurt, detriment, or damage of the aforesaid subject-matter of the said insurance, or any part thereof. Tha count thfin averred that the coffee was placed on board the said ship, and that, while it was so on board, the said ship was stranded, and afterwards, and during the continuance of the said risk, the said goods were by divers of the perils insured against, and not by any of the excepted perils, totally lost. Plea, that the said goods were not lost by any of the perils insured against by the sajd policy, ajid that the goods were lost by certain of the perils from which the same were by the policy warranted free. The cause was tried before Erie, C. J., at tho sittings in London after last Hilary Term, when the facts proved or admitted were as follows :-The 6500 bags of coffee in question were on the 24th of May, 1861, shipped on board the " Liuwood" at Rio (a) At 50s. premium, the ordinary rate being 25s. M C. B. (S. S.)263. ION1DES V. THE UNIVERSAL MARINE INSURANCE CO. 447 de;Janeiro for New York. She sailed on the 36th, and on the 1st of June arrived at Belize, whence she departed on the 3rd for New York, calling at New Orleans. On the 17th of July, at 8 p.m., the captain, believing that he was altout thirty-live miles to the eastward of Cape Hatteras, and the wind being South-South-West, changed his course from North-North-East to West, and turned in for the night, and in the course of a short time the ship ran aground abqut two hundred yards from the shore in Hatteras inlet, ten miles to the South-West of the Capo. There had for many years been a light at Cape Hattcras, which in ordinary weather was visible, according to the evidence of some of the witnesses, at a distance of twenty or twenty-five or even thirty miles. For some time prior to the time the " Linwood " sailed from Rio de Janeiro hostilities had subsisted between the Northern states of America and some of the Southern states which had seceded from the Union,-the two contending parties being respectively known as the " federals;' [262] and the " confederates," and the latter, though not formally recognized by foreign nations as an independent confederation, being generally treated as entitled to all the rights of belligerents according to the law of nations. The state of North Carolina being one of the confederate states, the light on Cape Hatteras had been extinguished by order of the confederate government, for the purpose of harassing the federal shipping. This was done some time prior to the 17th of July : but the fact was unknown to the captain of the " Linwood " until after his disaster. The "Linwood " was the property of federal owners ; but the cargo belonged to British merchants. On the morning of Wednesday, the 18th of July, the "Linwood" being aground, two confederate officers came on board, and told the captain they would take possession o| the ship. They accordingly possessed themselves of the ship's papers, which with the captain they took on shore, where he was detained as a prisoner; on the afternoon of the following day the mate and crew were likewise taken on shore and detained. The weather being bad, no attempt was made to save any of the cargo until Thursday the 19th, when 150 bags (or 120, it did not clearly appear which,) of coffee were landed by salvors (popularly called " wreckers "), persons employed by the (federal) government for that purpose. According to the evidence, these wreckers could on that day have landed 1000 bags more,(a) but the confederate troops would not allow them to do so, unless they would consent to save the goods for them. On the 19th the weather became very boisterous, and on the 20th the vessel broke up, and the whole of the coffee remaining on board was lost. [263] Upon these facts, a verdict was entered for the plaintiff as for a total loss, leave being reserved to the defendants to move to enter a nonsuit, or to reduce the damages, on the ground that the loss was occasioned by or in consequence of hostilities or capture or riots or commotion, against which loss the defendants were warranted free, or at least that a partial loss was by such exceptod perils turned into a total loss, -the court to have power to draw such inferences as a jury might have drawn. Brett, C^. C., on a former day in this term, obtained a rule nisi accordingly. He submitted that the immediate cause of the loss was the hostile seizure, and not the perils of the sea. Bovill, Q. C., Lush, Q. C., and Sir Q. Honyman, shewed cause. Assuming that the Hatteras light, if there, might have been seen in time to alter the ship's course,- although upon the evidence that is by no means...
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