Palmer and Another v Naylor and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1854 |
| Date | 03 July 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 492
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 C. L. R. 1202; 23 L J. Ex. 323, 18 Jur. 961; 2 W. R. 621. Referred to, Cory v. Burr, 1883, 8 A. C 402.
palmeb and another v. naylor and otherk July .3, 18," 4.-To a declaration on a policy of assurance on advances for the transport of Chinese emigrants horn China to Peru, for their outfit and provisions, to be paid orr the armal of the emigrants at the poit of destination, the perils insured against being "pirates, roveis, thieves &c., barratry of the master and manners, and all other perils, losses, and misfortunes, &c.," in the usual form , the declaration alleging a total loss by the emigrants puatically and feloniously muiclering the captain and part of the crew, and feloniously stealing and cany ing away the ship-the defendants pleaded, first, that, as soon as the emigrants had committed the minder and had 10 EX 383. PALMER V. NAYLOR 493 obtained possession of the vessel, theysteeied for the nearest land, for the purpose of being landed, and refused to and would not proceed upon the voyage; and the vessel was then tit and able safely to proceed to the said port, and the remainder of her ciew could have navigated her theie, and were ready and willing to convey the emigrants there if they would have gone, but that they would not, and that, by reason of such refusal, and for no other cause whatsoever, the transport was never completed -Secondly, as to the taking and cany ing away of the vessel, that the emigrants were unwilling to be earned on the said voyage, and that they committed the murder and took possession of the vessel for the purpose of being landed and of escaping and from being earned on the voyage, and for no other purpose, which is the said piratical carrying away of the vessel -Held, on error, affirming the judgment of the Court below, that the muider of the captain and part of the ciew, and the seizure of the vessel by the emigrants, as alleged in the declaration and admitted bv the pleas, was, it not a puatical act, one ejusdem generis, and therefore within the perils insured against, and that, as the loss was complete at that moment and was never reduced, the unwillingness of the emigrants to proceed was not the cause of the loss, but was wholly immaterial, and consequently that the pleas were bad. [S. C. 2 C. L. R. 1202; 23 L J. Ex. 323, 18 Jur. 961 ; 2 W. R. 621. Referred to, Uoty v. Bui 7, 1883, 8 A. C 402.] This was a proceeding in error upon a judgment of the Court below in the case of Naylffr v. Palmer,(a)1 in which judgment had been given for the plaintiffs below The case was argued in the present Sittings (June 16 and 17) by [383] Bramwell for the plaintiffs in erior, (the defendants below).(a)2 The pleas are based upon the pioposition that the loss for which the plaintiffs proceed was not occasioned by one of the perils insured against. It is admitted bv both sides, that the insurance is not upon the ship nor upon the Coolies considered as property, but upon their safe arrival at Callao, in Peru The question tests upon the principle of law, that, in considering the cause of the loss, the causa proxima is alone to be regarded. Assuming the conduct of the Coolies to have been piratical, what was the cause of the loss 2 The answer is, their unwillingness to proceed on the vogage, and that unwillingness was the cause That is not provided against by the terms of this policy, and consequently the loss is not attributable to a peiil insured against If this policy...
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