King, Bulwer and Others v Walker
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 1864 |
| Date | 16 May 1864 |
| Court | Exchequer |
English Reports Citation: 159 E.R. 158
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 33 L. J. Ex. 167, 9 Jur. (N. S.) 1157; 3 W. R. 232; 9 L. T. 259 affirmed 1864, 3 H. & C. 209.
[384] king, bulwer and others v. walker. July 6, 1863.-To a declaration on a valued time policy, averring a total loss, the defendant pleaded only a plea of fraudulent concealment. Held, that a total loss was not admitted, for if that allegation had been, traversed the plaintiff might have recovered as for a partial loss.-On the 23rd September, 1859, a ship having been compelled by sea-damage to put into a port near the Cape of Good Hope, the master had her surveyed, and on the 18th of October, 1859, wrote to the ship's husband at Liverpool describing what had happened, and telling him to give the underwriters notice. JHfcC385. KING V.WALKER 159 On the 18th November he again wrote describing the damaged state of the ship, and stating that in the opinion of the surveyors she could not go home with a partial repair, but that she would riot be worth the amount it would take to repair her This letter was forwarded to the underwriters. On the 24th November the master executed a notarial act of abandonment, and on the 9th December sold the ship. On the 20th December he again wrote to the ship's husband stating that it would be for the interest of all concerned to abandon and sell, instead of repair, and that he had accordingly sold the ship, and he requested due notice to be given to the underwriters, who were then informed of the sale. The ship would not in fact have been worth the expense of repair. Held, that there was no sufficient notice of abandonment to make a constructive total loss. [S. C. 33 L. J. Ex. 167 , 9 Jur. (N. S.) 1157 ; 13 W. R. 232; 9 L. T. 259 affirmed 1864, 3 H. & C. 209.] The first count of the declaration stated that the plaintiffs, before and at the time of making the policy of insurance hereinafter mentioned, and thence continually until the 1st of March, 1860, were shipowners, and membeis together with the defendant any other persons of a society or association, called "The Mutual Marine Insurance Association for the Port of Stockton," and the ship hereinafter mentioned and certain ships of the defendants were from the day of the date and making of the said policy of insurance admitted into and entered in the said Society, and at all times hereinaftei mentioned continued to be and were so entered; and the plaintiffs, to wit, on the 1st day of March, AD. 1859, caused to be made a policy of insurance pur-porting thereby and containing therein that W Bulwer and J. King, 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, might, or should appertain, in part or in all, did make assurance and cause them and every of them to be insured, lost or not lost, at and from the meridian of the 1st day of March, 1860, upon the body, tackle, apparel, ordnances, munition, artillery, boat and other furniture of and in the good ship 01 vessel called the "William Willmett;" and that it should be lawful for the said ship to proceed and sail to [385] and touch and stay at any poit or ports, places whatsoever, without prejudice to that insurance. And that the said ship, &c., for so much as concerned the assured, by agreement between the assured and assurers in that policy, was and should be valued at 20001. (The declaration then set out the usual clause enumerating " the adventures and perils" insured against, the common memorandum or warranty to be free of average, and the rules of the Association . (a) it also stated that the policy was subscribed for 6001, and in consideration that the plaintiffs, at the defendant's request, paid 3s. per cent on the said sum of 6001 the defendant became an insurer to the plaintiffs of his proportion of the said sum of 6001., to wit, 601) Averments ò that during the said space of twelve calendar months, and during the continuance of the risk insured against, the said ship was by the force and violence of the winds and waves and by the penis of the seas damaged beyond 3 per cent and wholly lost, and at the time of the said loss the said ship remained and was insured in the said sam of 6001. by the said Association for the period and on the terms of the said policy mentioned; and all conditions were fulfilled, and all things happened, and ail times elapsed, to entitle the plaintiff to be indemnified for and against the said loss, according to the said policy, and to payment by the defendant of his proportion, according to the said policy and rules and regu-[386]-lations, of the said sum of 6001, to wit, the sum of 601. Breach : non-payment. (a) Rule 13 was as follows--"If any ship insured in these Associations shall cause, do, or sustain damage of any nature or kind whatsoever, or shall be seized or confiscated, the owner shall, as early as circumstances will possibly permit, apprise the secretary thereof with every particular respecting such claim ; and shall when required produce protest and other necessary documents , and such owner shall not without the sanction of the committee (unless his ship be in a foreign pott) commence any repairs except such as may be deemed necessary for the immediate safety of the ship, or settle or compromise any disputes about any claim, or prosecute or defend any action or suit in relation thereto." 160 KING V. WALKER 2 H & C 387. The second count alleged a refusal by the defendant to have the loss settled by a committee according to the rules and regulations. Plea, That the defendant became an insurer to and promised the plaintiff's as in the declaration mentioned, after the said ship or vessel had sailed and whilst she was upon a certain voyage on the high seas; and that he became such insuier and so promised as aforesaid through and by means of the fraudulent concealment by the plaintiffs from the defendant of certain facts and information which, at the time of the defendant becoming such insurer and so promising as aforesaid, were known to the plaintiffs, and were then material to be known by and ought to have been communicated to the defendant, but of which the defendant had no notice or knowledge, to wit, that at the time when the said ship or vessel so sailed upon the said voyage as aforesaid she was unseaworthy; and before she sailed upon such voyage she had been surveyed by certain surveyors of ships appointed by the said committee of management of Lloyd's registry of ships, and had thereupon been reported by such surveyor to be, and in fact then was, in such a condition as not to be entitled to any character upon the said registry, and remained and was in such condition from the time of such survey until and at the time of her sailing upon the said voyage as aforesaid; and that at the time of the defendant becoming such insurer and so promising as aforesaid the said ship or vessel was unseaworthy. Issue thereon. At the trial, before Keating, J., at the Liverpool Spring Assizes, 1863, the following facts (a) appeared ò-Throughout [387J the year 1859 the plaintiffs and the defendant and other persons were members of a Marine Insurance Club, called "The Mutual Marine Insurance Association for Stockton," and had ships entered in the club, and the plaintiffs' ship, the " William Willrnett," was so entered. On the 1st day of March, 1859, the plaintiffs caused themselves to be insured in the club by a policy in the usual form for 6001. from that date to the 1st Maich, I860, on the " William Willmett," valued at 20001. By words at the foot of the policy it was agreed that the rules of the club should form pait of it. The policy was underwritten on behalf of the defendant and the other members of the club, with their authority each to bear his proportion of the policy according to the sums mutually insured by them. In May, 1859, the ship "William Willmett," being seaworthy, set sail with a cargo of teak on a voyage from Moulmem, in India, to Falmouth with the plaintiff King for her master. The plaintiff Bulmer, residing at Middlesborough, was the ship's husband. On the 23rd of September, 1859, she had sustained such damage from the perils insured against that it was necessary to make for Simon's Bay, near the Cape of Good Hope, where the ship was, on the 27th September, accordingly brought to anchor. Next day plaintiff King made a notarial protest, and the ship was, on the same day, surveyed by propei surveyors The surveyors recommended that the vessel should forthwith be lightened by discharging a poition of her cargo and tiimmed, so as to bring the leak (then 3 or- 4 feet under water) well out for further examination or repair. By the next mail from the Cape to England, viz, on the 18th October, 1859, plaintiff King wrote to plaintiff Bulmer, desciibing what had happened, and telling him to give the club notice of the accident to the ship The letter was accordingly, on the 28th November, 1859, for-[3&}-warded by Bulmer to and received by the club of the defendant. Captain King's letter contains this passage, " I am using my best exertions to get the ship made tight and on her voyage again in the cheapest manner, and in the shortest time possible. Everything is very high in pi ice, and it will be difficult to keep an average bill low." Another survey was made on the 2-3rd October, 1859, and the same surveyors, after mentioning some damage received by the ship, recommended that she should be still more lightened in order to enable them to better examine the ship, and to recemmend the repairs to be effected to enable the vessel to proceed to sea in a fit and proper condition. The third survey was made on the 5th November, 1859, and the same surveyors made a report stating particulars of the damage to and the state of the ship, and giving a specification of the repairs which they recommended and considered necessary. (a) The facts here stated are...
To continue reading
Request your trial
-
The Plaintiff Brought Error on This Judgment, and, The Defendant Having Joined
...(5 M. & S. 47). The tendency of recent cases is, that ample time should be given to the assured to inquire, King v. Walkert on Appeal (3 H. & C. 209); the proof of which is, that where notice of abandonment is useless, as for instance where information of the calamity and of the sale of the......
-
Cunningham v The Maritime Insurance Company
...7 C. P. 570. Farnworth v. HydeELR L. R. 2 C. P. 204. Fleming v. Smith 1 H. L. Cas. 513. Huths' CaseELR 16 Ch. D. 474. King v. WalkerENR 2 H. & C. 384. Leduc's CaseELR L. R. 6 P. C. 224. Navone v. HaddenENR 9 C. B. 30. O'BRIEN, J. Mr. Justice O'Brien being engaged at Nisi Prius, his judgment......