Pêcheries Ostendaises (Soc. Anon.) v Merchants' Marine Insurance Company
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1928 |
| Date | 11 January 1928 |
| Court | Court of Appeal |
Court of Appeal
Lord Hanworth, M.R., Atkin and Lawrence, L.JJ.
Societe Anonyme Pecheries Ostendaises v. Merchants Marine Insurance Company Limited
Bright's Trustee v. SellarELR 90 L. T. Rep. 155 (1904) 1 Ch. 369
Harrison v. Leutner 44 L. T. Rep. 331 16 Ch. Div. 559
Order LXV., r. 27, sub-r. 29
Costs — Taxation — Marine insurance action
Bright's Trustee v. Sellar (90 L. T. Rep. 155; (1904) 1 Ch. 369) and Harrison v. Leutner (44 L. T. Rep. 331; 16 Ch. Div. 559) applied.
Decision of MacKinnon, J. reversed.
404 ASPINALL'S MARITIME LAW CASES. APP.] Societe Anonyme Pecheries Ostendaises v. Merchants Marine Insurance Co. [App. Wednesday, Jan. 11, 1928. (Before Lord Hanworth, M.R., Atkin and Lawrence, L.JJ.) Societe Anonyme Pecheries Ostendaises v. Merchants Marine Insurance Company Limited, (a) APPEAL FROM THE KING'S BENCH DIVISION. Costs-Taxation-Marine insurance action - Costs before action-Costs during stay of proceedings-Order for ship's papers-Stay of proceedings pending affidavit of-Discretion of taxing, master-Premature Order LX V., r. 27, sub-r. 29. A trawler, the hull and machinery of which were insured by the respondents, sank and became a total loss. On a claim, under the policy being made, the respondents on the 7th May 1926 informed the appellants that the loss of the ship was not due to a peril insured against, and that they would resist the claim. The appellants thereupon, having regard to the fact that the members of the traveler's crew would be going on other voyages and then be far away, in June. 1926 took evidence from them. The writ was issued by the. appellants on the 20th July 1926, and on the 28th July the usual order was made that the plaintiffs should file an affidavit of the ship's papers, the order ending with the -coords, " in the meantime all further proceedings are stayed." After that order -was made, but before the affidavit required was filed, costs were incurred by the plaintiffs in " instructions for brief," preparing " points of claim " and for work done by consulting engineers and marine surveyors. The affidavit was filed and points of claim (a) Reported by Geoffrey P. LanuwoRtiiy, Esq., Barrister-at-Law. ASPINALL'S MARITIME LAW CASES. 405 APP.] Societe Anonyme Pecheries Ostendaises v. Merchants Marine Insurance Co. [App. delivered on the 5th March 1927. On the 20th May 1927 the defendants, being satisfied on inspection of the ship's papers that they could not contest the claim, settled the action and were ordered to pay the plaintiffs' taxed costs. The items above referied to of costs of obtaining the evidence of members of the crew, instructions for brief, preparing points of claim, and the fee to the engineers were objected to on taxation as not being costs which ought to have been incurred before action brought and during the stay of proceedings as being premature. Held, that costs incurred before action were in the discretion of the taxing master, to whom Order LXV., r. 27, sub-r. 29, gave a very v:ide discretion and he could allow them if he thought, as he did, that they had been incurred for purposes ultimately proving of use in the action ; the stay of proceedings was not a stay of activities, and costs incurred during the stay were allowable if the steps causing such costs were not premature, and the question whether in fact they were or were not premature was purely a question in the discretion of the taxing master. Bright's Trustee v. Sellar (90 L. T. Rep. 155 ; (1904) 1 Ch. 309) and Harrison v. Leutner (44 L. T. Rep. 331 : 10 Ch. Div. 559) applied. Decision of MacKinnon, J. reversed. APPEAL, by the plaintiffs from an order of MacKinnon made in chambers on the 19th Dec. 1927 ordering that the taxation of costs by the master be reviewed and that the objections taken by the defendants to items in the bill of costs should be allowed. The taxing master on the 1st Dec. 1927 in his taxations allowed all the items of costs to which the defendants objected on the ground that the stay of proceedings pending production of the ship's papers did not entirely paralyse the plaintiffs, so that they could do nothing by way of preparation for the action, and that, therefore, the question was whether any act of the plaintiffs by which costs were incurred during that period was premature, which was a question of reasonableness to be determined by him, and in his view the acts were not premature. MacKinnon, J. reversed that decision, allowing the defendants' objections. The facts are stated in the headnote, and more fully in the judgment of the Master of the Rolls. Le Quesne, K.C. and K. S. Carpmael for the appellants. R. I. Simey for the respondents. Lord Hanworth, M.R.-In my judgment, this appeal succeeds. It raises a somewhat novel point, and no doubt, from the large bearing that it may have, an important point. The case is this : On the 25th Feb. 1926 there was a loss of a trawler. That trawler was insured by the defendants in this action. The trawler belonged to the plaintiffs, and, very soon after the facts as to the loss were ascertained, it was notified on the 7th May by a letter written to the plaintiffs that the underwriters had determined to fight the case on the ground that the loss was not due to a peril insured against. The trawler had foundered, and it is not difficult to see that among the possible charges which arise from that attitude taken up by the insurers, it, might be possible that they were charging the plaintiffs with having scuttled the vessel. Whether that was specifically their intention or not, the plaintiffs were at any rate told that for the purpose of their success in the action it would be necessary for them to be prepared with evidence which should overcome the attitude of the underwriters that the loss was not due to the peril insured against. In June, in consequence of that notification, the plaintiffs and their advisers sent over to the Continent to take the statements of the crew of the trawler. The members of the crew were said to be under contract to serve in other vessels, and it was quite possible that they would be so engaged, and upon the high seas, in different directions, and their evidence would be lost if steps were not taken immediately to secure it. On the 20th July 1926 the writ was issued, and on the 21st a letter was written by the defendants as to the usual agreement which was to be obtained, thai all the underwriters would be...
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