McCowan v Baine. The "Niobe"
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 1891 |
| Date | 27 July 1891 |
| Docket Number | No. 10. |
| Court | House of Lords |
Earl of Selborne, Lord Watson, Lord Bramwell, Lord Morris.
Insurance—Marine insurance—Collision clause—Vessel under tow—Damage caused by tug to stranger ship.—
In a policy of marine insurance the underwriters insured the ship ‘Niobe’‘from the Clyde (in tow) to Cardiff … while there and thence to Singapore,’ and agreed ‘that if the ship hereby insured shall come into collision with any other ship or vessel, and the insured shall in eonsequenee thereof become liable to pay, and shall pay, to the persons interested in such other ship or vessel … any sum or sums of money, …’ to pay the insured a certain proportion of the sum so paid. Through the fault of the ‘Niobe’ and of her tug the latter came into collision with and sunk another vessel, whose owners recovered damages both from the ‘Niobe’ and the tug.
In an action by the owners of the ‘Niobe’ upon the policy against one of the underwriters for payment of his proportion of the sum paid by the pursuers on account of the collision, the defender pleaded that under the policy he was only liable for damage arising from collision with the ‘Niobe.’
Held (aff. judgment of Second Division), diss. Lord Bramwell, that in maritime usage the word ‘ship’ was frequently understood to cover a ship and the tug by which it was towed, and that it fell to be construed in this sense in the collision clause of the policy, and that the defender was liable.
(In the Court of Session, June 20, 1890, 17 R. 1016.)
The defender appealed.
At delivering judgment after consideration,—
Earl of Selborne.—I cannot help thinking that in construing such a mercantile contract as this there is as much danger of error in extreme literalism as in too much latitude; and though I do not adopt the argument that a contract of indemnity against the consequences of collision can be extended to a case in which there has been no collision, but only damages caused by measures properly taken to avoid a collision, I think a construction which makes it cover all damages consequent upon an actual collision, for which the assured is liable, is more reasonable and more in accordance with the probable intention of the parties (if the words will bear it) than one which does not.
In the present case the ‘Valetta’ was sunk by an actual collision, for which the owners of the ‘Niobe’ have been held liable. But the impact which caused the loss of the ‘Valetta’ was not of the hull of the ‘Niobe,’ but of the steam-tug ‘Flying Serpent,’ which was towing the ‘Niobe’ on a part of her insured voyage, described in the policy of insurance as ‘in tow from the Clyde to Cardiff and/or Penarth.’
The words of this contract are: ‘If the ship hereby insured shall come into collision with any other ship or vessel, and the insured shall, in consequence thereof, become liable to pay, and shall pay, to the persons interested in such other ship or vessel, or in the freight thereof, or in the goods or effects on board thereof, any sum or sums of money, not exceeding the value of the ship hereby assured.’ If a ship cannot be said to ‘come into collision with any other ship’except by direct contact, causing damage, between the two hulls (including under the term hull all parts of a ship's structure) there was in this case no such contact, and the appellants ought to succeed.
But I cannot adopt so narrow a construction of those words. I should hold them to extend to cases in which the injury was caused by the impact, not only of the hull of the ship insured, but of her boats or steam launch, even if those accessories were not (as in this case) insured as being, in effect, parts of the ship. I should also hold them to cover an indirect collision, through the impact of the ship insured upon another vessel or thing capable of doing damage, which might by such impact be driven against the ship suffering damage. I should take the same view, as against insurers in similar terms, of a tug towing one or more barges (in which case the barge owners would not be liable for a collision) if damage to any vessel were caused by the barge or barges being driven against it through the improper navigation of the tug, although there might have been no impact of the tug itself upon the injured vessel. And, after full consideration, it seems to me to be no more than a reasonable extension of the same principle to include within them such a case as the present.
Where a ship in tow has control over, and is answerable for, the navigation of the tug, the two vessels—each physically attached to the other for a common operation, that of the voyage of the ship in tow, for which the tug supplies the motive power—have been said, by high authority, to be for many purposes properly regarded as one vessel. Lord Kingsdown's words, in the case of The ‘Independence’ENR1 were, that the tug, ‘may, for many purposes, be considered as a part of the ship to which she is attached’; and he went on to repeat the reason given in the earlier judgment reported in the same volume, The ‘Cleadon,’ENR2 to which he was also a party, where it was said: The ‘Cleadon’ being in tow of the tug, it is admitted she and the tug must be considered to be one ship; the motive power being in the tug and the governing power in the ship that was being towed.’ I think the ‘Fying Serpent’ and the ‘Niobe’ may be so regarded for the purpose now in question. The principle on which the ‘Niobe’ has been held liable for the collision seems to
me to go far towards that conclusion. That the ‘Niobe’ should be in tow from the Clyde to Cardiff or Penarth was, in the present case, part of the contract. I think the construction ought to be the same, so far as relates to that voyage, as if the words in the margin had been: ‘If the ship insured, while in tow between the Clyde and Cardiff or Penarth, shall come into collision with any other vessel,’ &c. If the contract had been so expressed, I should have thought it arbitrary and not reasonable to exclude a collision by the impact of the tug during that voyage upon another vessel, for the consequences of which the owners of the ‘Niobe’ were liable.
I am, for these reasons, of opinion that the interlocutors appealed from are right, and ought to be affirmed.
Lord Watson.—The ‘Niobe,’ a sailing ship belonging to the respondents, was covered by a policy of insurance at and from ‘the Clyde (in tow) to Cardiff and/or Penarth, while there, and thence to Singapore, and while in port for thirty days after arrival.’ Provision was made for indemnity against liabilities arising from collision by a marginal clause, upon the construction of which the result of this appeal must depend.
Whilst the ‘Niobe’ was on her way to Cardiff in tow of the ‘Flying Serpent,’ her tug came into collision with the ‘Valetta,’ causing her serious damage. The ‘Valetta,’ after colliding with the tug, also came into contact with the ‘Niobe,’ but without receiving any injury. In a suit before the Admiralty Court...
To continue reading
Request your trial
- Syarikat Uniweld Trading v The Asia Insurance Company Ltd
- Chong Siew Choong v Public Prosecutor
- Public Prosecutor v Dato' Seri Anwar bin Ibrahim (No. 2)
-
Clyde Navigation Trustees v Kelvin Shipping Company
...v. Rathmines, &c., Improvement CommissionersELR, [1892] A. C. 498. 1 M'Cowan v. BaineELR, (1891) 18 R. (H. L.) 57, Lord Watson at p. 60, [1891] A. C. 401, at p. 408. 2 10 and 11 Vict. cap. 27, secs. 56, 57. 3 57 and 58 Vict. cap. 60, sec. 530. 4 The Queen v. Hull GuardiansENR, (1853) 2 E. &......