Montgomery and Company v Indemnity Mutual Marine Assurance Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 1902 |
| Date | 25 March 1902 |
| Court | Court of Appeal |
Court of Appeal
Williams, Stirling, and Cozens-Hardy, L.JJ.
Montgomery and Co. v. Indemnity Mutual Marine Assurance Company Limited
The BrigellaDID=ASPMELR 69 L. T. Rep. 834 7 Asp. Mar. Law Cas. 403 (1893) P. 189
Dickenson v. Jardine 18 L. T. Rep. 717 3 Mar. Law Cas. O. S. 126 L. Rep. 3 C. P. 639
Greeley v. Tremont Insurance Company 9 Cushing, 419
Moran v. Jones 7 Ell. & B. 503
Oppenheim v. FryENR 8 L. T. Rep. 385, 387 3 B. & S. 873, 884
Marine insurance — General average — Assured owner of both ship and cargo
The Brigella (69 L. T. Rep. 834; 7 Asp. Mar. Law Cas. 403; (1893) P. 189) disapproved.
Decision of Mathew, J. (84 L. T. Rep. 57; 9 Asp Mar. Law Cas. 141; (1901) 1 K. B. 147) affirmed.
MARITIME LAW CASES. 289 CT. OF APP.] MONTGOMERY & Co. v. INDEMNITY MUTUAL MARINE ASSURANCE Co. [CT. OF APP. March 13, 14, and 25, 1902. (Before Williams, Stirling, and Cozens. Hardy, L.JJ.) MONTGOMERY AND Go. V. INDEMNITY MUTUAL Marine Assurance Company Limited, (a) APPEAL FROM THE KING'S BENCH DI??SION Marine insurance - General average - Assured owner of both ship and cargo - Insurance on cargo - Sacrifice of mast - Right of assured to recover under policy - Liability of underwriter on cargo. The fact that the assured under a policy of marine insurance on cargo is owner of the ship as well as owner of the cargo does not prevent him from recovering under the policy from the underwriters on the cargo in respect of a general average loss, as a general average act does not depend on the consideration whether there can be any contribution or not as between the respective interests. The Brigella (69 L. T. Rep. 834; 7 Asp. Mar. Law Gas. 403; (1893) P. 189) disapproved. A loss caused by the cutting away of the mast of a ship, which by the master's orders is cut away for the safety of the whole adventure, but which at the time it is cut away is not hopelessly lost and might be saved, is a general average sacrifice for which underwriters of a policy on the cargo against perils of the seas are liable to contribute, and they are none the less liable because the assured are owners of both ship and ?? Decision of Mathew, J. (84 L. T. Rep. 57; 9 Asp. Mar. Law Cos. 141; (1901) 1 K. B. 147) affirmed. This action was brought by the plaintiffs, the owners of the ship Airlie and her cargo, to recover from the defendants a general average loss under a policy of marine insurance on cargo effected by the defendants; alternatively, to recover the defendants' proportion of ?? and labouring expenses to avert a total loss of the insured cargo. The insurance was against perils of the seas and other losses of the same character, and the policy contained the ordinary sue and labour clause, and & provision that general average was payable as per foreign statement or York and Antwerp rules, if so made up. During the voyage the ship encountered very bad weather, and the main mast, which was of iron and hollow, settled down. The mast, however, was recured and remained in its position. As the ship continued to roll, the master, fearing that the mast would break and so cause the loss of the vessel, ordered is to be cut away, and it was cut away and fell over the side. The plaintiffs sought to recover, under their policy on the cargo, a general average loss incurred by the cutting away of the mast, as they contended that the cutting away of the mast was under the circumstances, a general average sacrifice, rendered necessary by the perils of the seas insured against. The defendants said that the cutting away of the mast was. not a general average sacrifice, and gave rise to no general average claim; that, as the plaintiffs were owners of both ship and cargo there could be no contribution to general average as between ship and cargo, and therefore the (a) Reported by W. C. BISS, Esq Barrister-at-Law. 290 MARITIME LAW CASES. CT. OF APP.] MONTGOMERY & Co. v. INDEMNITY MUTUAL MARINE ASSURANCE Co. [CT. OF APP. plaintiffs could not claim under the policy on the cargo, and that the sue and labour clause did not apply. The case was heard by Mathew, J., who held (84 L. T. Rep. 57; 9 Asp. Mar. Law Cas. 141; (1901) 1 K. B. 147) that the plaintiffs were entitled to recover a general average loss, thus differing from the opinion of Barnes, J. in The Brigella ((V.) L. T. Rep. 834; 7 Asp. Mar. Law Cas. 403; (1893) P. 189). The defendants appealed. Scrutton, K.C. and Loehnis for the appellants. - When the master ordered the mast to be 3ut away he believed it to be a wrack, and it was cut away to avoid the loss of the ship. There was, therefore, no general sacrifice in this case. The plaintiffs have no claim for general average loss against the underwriters on the cargo...
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