Samuel (P.) & Company Ltd v Dumas
| Jurisdiction | England & Wales |
| Judgment Date | 15 December 1922 |
| Date | 15 December 1922 |
| Court | Court of Appeal |
Ship - Mortgage - Insurable Interest of Mortgagee - Separate Insurance - Assignment of Mortgagor's Interest - Ship scuttled - Connivance of Mortgagor - Perils of the Sea - Barratry - General Words - “All other perils, losses,” etc.
The owner of a ship purported to mortgage the ship to secure the amount due and to become due to the mortgagee on a current account. The mortgage consisted of a deed of covenant and a statutory first mortgage to be registered in Greece. By the deed the owner assigned to the mortgagee all the shares in the ship and all policies effected or to be effected on the ship or freight and all powers, rights, and remedies thereunder, and in particular a power for the mortgagee to sue in the name of the owner for insurance moneys; and covenanted to insure the ship and her freight and keep them insured and pay the premiums thereon and to produce the receipts therefor and to deliver to the mortgagee the policies duly indorsed or give the mortgagee the guarantee of a broker that he held the policies solely on account of the mortgagee; and the owner appointed the mortgagee his attorney for him and in his name to sue for all insurance moneys on the ship. By the statutory mortgage, which recited the deed above mentioned, the owner covenanted to pay the sums for the time being due, and mortgaged the whole interest in the ship free from incumbrances. The mortgage was never registered in Greece.
In pursuance of the covenant in the deed a time policy for twelve months was taken out by ship brokers, the plaintiffs, “and/or as agents as well in their own name as for and in the name of all and every other person or persons to whom the same doth, may, or shall appertain in part or in all” against adventures and perils of the seas and other contingencies including barratry of the master and mariners “and of all other perils, losses, and misfortunes that …. shall come to the hurt, detriment, or damage of the said …. ship &c., or any part thereof.”
During the currency of this policy the ship was scuttled by the master and crew, or some of them, with the connivance of the owner but without any connivance or complicity on the part of the mortgagee. In an action upon the policy by the mortgagee:—
Held, by Bankes L.J. and Eve J.:—
(1.) That the mortgagee had an insurable interest in the ship although the mortgage was never registered in Greece;
(2.) On the facts, that the mortgagee's interest was intended to be separately covered by the policy and was not merely derivative from the owner's interest;
(3.) (Scrutton L.J. dissenting) that the mortgagee was in these circumstances entitled to assert and maintain that the ship was lost by perils of the sea.
The policy contained a warranty that the amount insured on freight should not exceed 25 per cent. of the value of the hull and machinery if the freight were insured for twelve months, to be proportionately reduced if the freight were insured for a period less than twelve months. The freight was insured against war risks for an amount substantially exceeding the amount limited by the warranty:—
Held, by Bankes and Scrutton L.JJ. and Eve J., that it mattered not that the insurance on freight was against war risks; that there was none the less a breach of the warranty, and that the mortgagee could not recover.
By a deed of covenant made between the owner of a ship and his mortgagees the mortgagees agreed to advance a sum of money on the security of a first mortgage under the Greek law on the whole of the ship; and it was agreed that the ship should be kept insured at the expense of the owner against risks of every kind and that all policies of insurance on hull and machinery should be suitably indorsed in favour of the mortgagees and lodged with them along with the mortgage or with brokers on their behalf who should address a letter to the mortgagees acknowledging that the policies were held on behalf of the mortgagees; and further agreed that the ship-owner appointed the mortgagees his true lawful and irrevocable attorneys for him and in his name to sue for all insurance moneys to become due and owing under any policy. A statutory mortgage, which recited the deed of covenant, was executed but never registered in Greece under the Greek law. Certain brokers had taken out a policy in their own names “and/or as agents, hereinafter called the assured,” reciting that they were duly interested in or authorized as owner agent or otherwise to make the insurance. The policy was upon the hull and machinery of the ship against perils of the seas, barratry of master and mariners and all other perils, losses, and misfortunes, &c. The brokers had written to the mortgagees informing them that this insurance had been effected and that at the request of their client, the owner, they were holding the policy to the order of the mortgagees to the extent of their interest in the ship. During the currency of this policy the ship was scuttled by the master and crew, or some of them, with the connivance of the owner but without any connivance or complicity on the part of the mortgagees. In an action on the policy by the mortgagees:—
Held, by Bankes and Scrutton L.JJ. and Eve J., that the mortgagees could not recover on the policy, the Court upon the true construction of the deed of covenant and of the policy and in view of the circumstances attending the execution of the policy, being of opinion that the mortgagees were not parties to the contract of insurance and that the policy was not intended to cover any separate independent interest of the mortgagees as distinct and apart from that of the owner, but that they took a derivative interest in the policy by assignment from the owner, and that his wrongful act debarred him, and consequently the mortgagees, from recovering.
Per Scrutton L.J. on the further ground that a loss by scuttling is not a loss by perils of the seas; nor, when the owner connives at the scuttling, is there a loss either by barratry or under the general words “all other perils, losses, and misfortunes,” etc.
APPEAL from the judgment of Bailhache J. in an action tried before the learned judge without a jury.
The plaintiffs were P. Samuel & Co., Ld., insurance brokers. The action was brought on a policy of marine insurance in which the plaintiffs were named as the assured. They sued on behalf of D. G. Anghelatos, the owner of the steamship Gregorios, and on behalf of one Percy Samuel, who carried on business as P. Samuel & Co., and was a mortgagee of the steamship.
The mortgage agreement was dated September 13, 1920, and made between D. G. Anghelatos thereinafter called the shipowner of the one part and Percy Samuel carrying on business as P. Samuel & Co. thereinafter called the mortgagee of the other part. It recited that the shipowner was the absolute owner free from incumbrances of the steamship formerly called the Grindon Hall but then called the Gregorios and intended to be registered under the Greek flag at Piræus in Greece, and that the mortgagee had agreed to advance to the shipowner the sum of 22,500l. upon having repayment of the same and any other moneys to become due from the shipowner to the mortgagee with interest secured as thereinafter appearing and upon delivery to the mortgagee of (a) a statutory or formal first mortgage of the steamship duly executed and registered in Greece (thereinafter referred to as the said mortgage); (b) good and approved policies of insurance upon the vessel as thereinafter provided; (c) the said indenture itself, and (d) bills of exchange. It proceeded to assign all the 100/100th shares in the vessel “and all policies cover notes slips certificates of entry effected or hereafter to be effected granted or issued on the said steamship and on its appurtenances and also on the freight and outfit of the said steamship and also in respect of the protection and indemnity of the said steamship and the full benefit thereof all powers rights remedies and authorities thereunder and in particular with full power for the mortgagee in the name of the shipowner or otherwise to ask demand sue for and recover the said insurance moneys including the right to compromise any claim or suit and to receive the said insurance moneys or any moneys payable by way of compromise and to give valid and effectual discharges for the same and all the right title interest and demand of the shipowner of in and to the said steamship policies and premises To hold the premises hereby assigned unto the mortgagee as security for the payment of all moneys secured by the said mortgage and of all moneys which may hereafter become payable under any of the provisions hereof.” And the indenture further witnessed that the shipowner covenanted and agreed with the mortgagee as follows:—
“1. The shipowner shall pay to the mortgagee the said sum of 22,500l. on or before March 13, 1921, together with interest for the same at the rate of 1½ per cent. per annum above the Bank of England rate current for the time being from September 13, 1920, and will also pay all other moneys which may be or become due under the security of the said mortgage and of these presents upon the dates whereon the same shall be or become payable or upon demand and until payment the same shall carry interest at the rate aforesaid.
“2. In addition to the interest above provided for the shipowner shall pay to the mortgagee on the execution of these presents a commission of one half per cent. on the said loan.
“3. The shipowner will immediately upon the...
To continue reading
Request your trial
-
Ennia General Insurance Company Ltd Appellant v J. Astaphan & Company (1970) Ltd Respondent [ECSC]
...the doctrine of estoppel". I am of opinion the position in the instant case may be determined in accordance with the decision in Samuel & Co. Ltd. v. Dumas (1923) 1 K.B. 592 as contained in the opinion of Viscount Cave at p. 613. "Now a right may be waived either by express words or by cond......
- Freighter Kien Kung, The
-
Gray v Barr
...crew so that sea water entered and she sank, it was held that the loss was due to the scuttling, and not to perils of the sea, see Samuel (P.) & Co. v. Dumas (1923 1 K. B.) at page 619 by Lord Justice Scrutton, (1924 A. C.) at page 459 by Lord Finlay. 20 Applying this principle, I am of opi......
-
Moneywood Pty Ltd v Salamon Nomineespty Ltd
...... of the land and contacted Mr Alfred Salamon, a director of the company, to canvass the possibility of arranging a sale of the land. Although Mr ...It identifies ‘the dominant or effective cause’ ( P Samuel & Co v Dumas [1924] AC 431 at 459) or the ‘“direct and ......
-
Pirates... A Charterers' Peril of the Sea?
...Annotation (Informa, London, 2009); Working Group I II (2002-2008): Transport Law 45Article 17.3 (c) 46P Samuel & Co Ltd v Dumas [1923] 1 KB 592 (CA); per Scrutton LJ at [618] 47The Giulia 218 F 744 (2nd Cir 1914); per Rogers CJ at [746]; Goodfellow (Charles) Lumber Sales v Verreault Hoving......