Miller and Others v Tetherington
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1862 |
| Date | 11 February 1862 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 114
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 30 L. J. Ex. 217, 7 Jur. (N. S.) 2l4, 9 W. R 437, 3 L T. 893: affirmed 1862, 7 H. & N. 954
[278] miller and others i, tetherington. Jan. 28, 1861 -A custom that underwriters are not liable under the ordinary form of policy, for general average in respect of the jettison of goods stowed on deck, is a valid custom and does not contradict the terms of the policy '[S. C. 30 L. J. Ex. 217, 7 Jur. (N. S.) 2l4, 9 W. R 437 , 3 L T. 893 : affirmed 1862, 7 H. & N. 954 ] Declaration. That the plaintiffs made their policy of insurance in the words and figures followuig.-"Be it known that Miller, Houghton and Co., 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 doth, may, or shall appertain, in part or in all, doth make insur ance, and cause themselves, and them and every of them, to be insured, lost or not lost, at and from Miraraichi to Liverpool, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, attilleiy, boat, and other furniture of and in the good ship or vessel call the new ship, declared ' The Chatsworth,' 9th September, whereof is master, &c, beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship as above, upon the said ship, &c , including collision clause, and so shall continue arid 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 arid merchandises whatsoever shall be arrived at as above, upon the said ship, &c , until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same be there discharged and safely landed , and it shall be lawful for the said ship, &c , in this voyage to proceed and sail to, and touch and stay at any port or places whatsoever, without prejudice to this insurance The said ship, &c, goods and merchandises, &c., for so much as concerns the insured, by agreement between the insured and insurers in this policy, are and shall be valued at on hhip, valued at 80001., [279] warranted to sail on or befoie the 1st September, 1859 Touching the adventures and perils which we, the insurers, are contented to bear and do take upon us m this voyage ; they are, of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints, and detamments of all kings, princes, and people, of what nature, condition, or quality soever, barratry of the master and manners, and of all other perils, losses, and misfortunes that have or shall 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 shall be lawful to the insured, their factors, servants, and assigns, to sue, labour, and travel 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 this insurance, to the charges whereof we, the msureis, will contiibute, each one .te-4^ This report is evidently incorrect The judgment, which was written, commences thus (5 Q. B 168).-"This was a motion for a new trial on the ground of misdirection, the learned Judge having told the jury that the innkeeper was not answerable for injury done to the horse of a guest placed in his stable by the kick of another horse, unless there was some negligence proved in the innkeeper. ' 8H4BF2SO. MILLER V. TETHERINGTON 115 according to the rate and quantity of this sum herein insured And it is agreed by us, the insurers, that this writing or policy of insurance, shall be of as much force and effect as the surest writing or policy of insurance heretofore made in Lombard Street, or in tiie Royal Exchange, or elsewhere in London, and so we, the insurers, are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the insured, their executors, administrators and assigns, for the true perfoi mance of the premises, confessing ourselves paid the consideration due unto us for this insurance by the insured, at and after the rate of 40s per1 cent. In witness whereof we, the insurers, have subscribed our names and sums insured in Liverpool. N.B.-Com, fish, salt, fruit, flour, and seed are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hidffi, and skins are warranted free from average under [280] 51. per cent . and all other goods, and also the ship and freight, are warranted free from average under 31. per cent, unless general, or the ship be stranded. And we further agree, that in case the said ship shall come into collision with any other ship or vessel, and the insured shall, in consequence thereof, become liable to pay, and shall pay (as damages to the owners or charterers of such other ship or vessel, or to the owners or consignees of the coj-go thereof, or to the master and crew or passengers thereof), for the loss of or injury to their goods and effects on board such other vessel, or for costs (but not for damages for loss of life or personal injury to individuals), any sums not exceeding the value of the ship or vessel, new ship, and her freight, by or in pursuance of the judgment of any Court of law or equity, or of the Court of Admiralty...
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