Michael v Gillespy
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1857 |
| Date | 23 May 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 562
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 26 L. J. C. P. 306; 3 Jur. N. S. 1219.
[627] michael v. gillespy. May 23rd, 1857. [S. C. 26 L. J. C. P. 306 ; 3 Jur. N. S. 1219.] Freight may be insured by a time policy, though for a period short of the time necessary to complete the voyage on which such freight is to be earned : and there is a total loss of freight, if the cargo be so damaged by a peril of the sea, in the course of the voyage, as to render it impossible (except at an expense which would greatly exceed its value on arrival,) to carry it to its port of destination.-Freight was insured by a "club-policy" from the 24th of January, 1852, to the 1st of March, 1852, subject to the rules of the association,-one of which was as follows : " That the committee, unless they receive ten days' notice to the contrary, shall renew each policy on its expiration, except in cases where it may be deemed expedient not to renew the same, when the committee shall cause similar notice to be given to the parties." No notice having been given:-Held, that this was a continuing policy, and not merely a policy to enure till the 1st of March. This was an action by a ship-owner against a member of a mutual insurance association, on a time policy on ihe freight of a cargo of coals. The declaration stated, that the plaintiff, at the time of making the policy of insurance thereinafter mentioned, was, and still was, a ship-owner, and member, together with the defendant and divers other persons, of a certain association called the (a) See Shaw v. The York and North Midland Railway Company, 13 Q. B. 347, Austin v. The Manchester, Sheffield, and Lincolnshire Railway Company, 10 C. B. 454, Austin v. The Manchester, Sheffield, and Lincolnshire Railway Company, 16 Q. B. 600, Carr v. The Lancashire and Yorkshire Railway Company, 7 Exch. 707, Walker v. The York and North Midland Railway Company, 2 Ellis & B. 750, and The York, Newcastle, and Berwick Railway Company, App., Crisp, Resp., 14 C. B. 527. 2 C. B. (N. S.) 628. MICHAEL - V. GIIXESPY 563 Whitby Insurance Association, and the ship or vessel thereinafter mentioned was, from the day of'the making of the policy of insurance thereinafter mentioned, admitted and entered in the said society: That the plaintiff, on the 24th of January, 1852, caused, to be made a certain policy of insurance, purporting thereby and containing therein that the plaintiff, as well in his 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 caused himself and them and every of them to be insured, lost or not lost, at and from meridian of the 24th of January then current, to meridian of the 1st of March, 1852, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel called the " Charles Kerr," whereof was master E. K., under God, for that voyage, or whomsoever else should go for master in the said ship, or by whatsoever other name or names the ship or the master thereof was or should be named or called, beginning the [628] adventure upon the said goods and merchandises from the loading thereof aboard the ship, upon the said ship, &c., on cargo and freight, and so should continue and endure during her abode there, upon the said ship, &c and further until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandise whatsoever, should be arrived at as above, upon the said ship, &c., until she had moored at anchor twenty-four hours in good safety, and upon the goods,.&c., until they should be then discharged and safely landed ; and it should be lawful for the said ship, &c. in the said voyage to proceed and sail to, and touch and stay at, any ports or places whatsoever, and without prejudice to the said insurance : The said ship, &c., goods and merchandises, &c., for so much as concerned the assured, by agreement between the assured and the assurers in the said policy, were and should be valued at interest: Touching the adventures and perils which the assurers were contented to bear, and did take upon them in the said voyage, they were of the seas, men of war, fire, enemies, &c., restraints, &c. 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 to the hurt, detriment, or damage of the said goods and merchandises and ship, &c., or any part thereof; and, in case of any loss or misfortune, it should be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travail for, in, and about the defence, safeguard, and recovery of the said goods and merchandises and ship, &c., or any part thereof, without prejudice to the said insurance, to the charges whereof the assurers would contribute, each one according to the rate and quality of his sum therein assured: That the said writing or policy of assurance should be of as much force and effect as the surest writing or policy of assurance theretofore made [629] in Lombard Street, or in the Eoyal Exchange, or elsewhere in London; and so the assurers were contented, and did thereby promise and bind themselves, each one for his own part, their heirs, executors, and goods, to the assured, their executors, administrators, and assigns, for the true performance of the premises; having confessed themselves paid the consideration due unto them for the said assurance by the assured, at and after the rate of 201. per cent.: And by a certain memorandum thereunder written, corn, fish, salt, fruit, flour, and seed were warranted free from average, unless general, or the ship should be stranded; sugar, tobacco, hemp, flax, hides, and skins were warranted free from average under 51. per cent.; and all other goods, also the ship and freight, were warranted free from average under 31. per cent., unless general or the ship should be stranded : And by a certain other memorandum thereunder written, it was mutually agreed that the regulations annexed to the said policy of assurance should form part of the said policy: And it was by the said regulations annexed to the said policy of assurance, amongst other things, declared,-that the members of the said association severally and respectively, and not jointly or in partnership, nor the one for the other of them, but each of them only in his own name, should insure each other from noon of the day of entry of each vessel into the said association, until noon of the 1st of March, 1852, against all general averages and total losses of cargo and freight, to the extent of 81 or 161. per keel, as might be entered by the owner, provided his interest at the time of loss should amount to the sum, otherwise only the actual loss sustained: and that the several rules and regulations following the said rule then in recital should be as binding and conclusive as if inserted in and made a component part of the said policy ::-That ships lost in ballast should be entitled to receive for [630] outfit one fourth part of the sum entered, 564 MICHAEL V. GILLESPY 2 e. B. (N. S.) 631. -That insurances might be effected by the said association on the cargo and freight of any ship insured in the Whitby Insurance Association, or approved of by the committee, and that, on being entered, the owner should pay Is. per keel, to the extent of twelve keels, and 6d. per keel for each extra keel above that number on the entire burthen of the ship, and also for the policy duty and power of attorney,-That no claim would be allowed for the loss of cargo and freight in any ship when employed in any unlawful trade with the knowledge and consent of the insured, nor when loading or unloading on any main shores or beaches, excepting in vessels not exceeding six keels burthen, between the 25th of April, at noon, and the 15th of September, at noon, nor in any ships excepting those from the Mediterranean, or ports to the south of Gibraltar, sailing to the ports in the Gulf of Finland and Bothnia, after the 1st of October; Riga, the ports in Riga Bay, or to Stockholm, after the 10th of October; lower ports in the Baltic, not higher than Memel, inclusive, nor to any port or place in -the Bell Sound or Cattegat, above Gottenburg, after the 20th of October; Gottenburg and the ports in Norway, from the 10th of November to the 25th of February inclusive ; the ports between Ostend and the Scaw, from the 20th of November to the 1st of February inclusive : ships sailing from the western coast of Great Britain (that is to say, between Falmouth and Duncansby Head), or from Ireland, to any of the ports above mentioned, should be required to sail ten days earlier: ships proceeding outwards in ballast seeking freight might move from porttoport situate within the prescribed limits of mailing without restriction; but ships taking a cargo outwards, and afterwards changing ports for freight homeward, should, in case of loss or average, suffer a [631] deduction of 10 per cent., unless such ship should have commenced her voyage ten days earlier than the time specified : nor when sailing from any port in Europe to the ports in the White Sea after the 5th of August; ports and places on the River St. Lawrence above Cape Gaspe after the 15th of August; British Colonies in North America (ports and places on the River St. Lawrence above Cape Gaspe excepted,) after the 1st of September,-That no ships, excepting such as are classed Al in Lloyd's register-book, should be insured when sailing to any port in America situate to the northward of 35 degrees north latitude after the 15th of June; neither should any lengthened ship of any classification...
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