Small and Others against Gibson
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1849 |
| Date | 18 December 1849 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 827
QUEEN'S BENCH.
Reversed in Exchequer Chamber, 16 Q. B. 141: the latter decision affirmed in House of Lords, 4 H. L. C. 353; 10 E. R. 499 (with note).
[128] SMALL and others against gibson. [Tuesday, December 18th, 1849.] Held by the Court of Queen's Bench, that, on insurance of a ship, there is no difference, as to the implied warranty of seaworthiness, between a time policy and a policy on voyage; and that, in the case of a time policy, the warranty takes effect from the time named in the policy for commencing the risk, wherever the ship may be, or however situated : and therefore that, if, at the time fixed for commencing the risk, the ship is at sea, the assured warrants that she is then fit for sea. Held by the Court of Exchequer Chamber, reversing the judgment of the Queen's Bench, that, on a time policy, there is not an implied warranty that the ship is seaworthy wherever she may be, or however situated, at the commencement of the risk; but only that she is seaworthy so far as the assured could provide for her being so when the risk commenced ; e.g., if she was in a port at the time, that she was in a proper condition for such a port: if at sea, that she was seaworthy when the particular voyage commenced : the terra " seaworthy," in a policy for time, as in a voyage policy, implying not necessarily fitness to go to sea, but fitness to encounter the hazards of the situation in which she is placed when the risk attaches. Held, by both Courts (after verdict for defendant), a good plea, to a declaration on a time policy, that the ship was. not " seaworthy " at the time when the condition of seaworthiness attached (assuming such time to be properly pointed out): the term " seaworthy " being sufficiently definite, though it admits of a modified application according to the situation of the ship at the time in question. [Reversed in Exchequer Chamber, 16 Q. B. 141 : the latter decision affirmed in House of Lords, 4 H. L. C. 353; 10 E. K. 499 (with note).] Assumpsit on a policy of insurance. The first count of the declaration stated that the plaintiffs, to wit on 27th November 1843, by a certain policy, &c., caused to be made assurance, " lost or not lost, in port and at sea, in all trades and services whatsoever and wheresoever, during the space of twelve calendar months, commencing on the 25th day of September A.D. 1843, and ending on the 24th clay of September a.d. 1844, both days included, upon any kind of goods and merchandize and also upon the body, tackle, apparel and ordnance, munition, artillery, boat and other furniture of and in the good ship or vessel called the 'Susan,' whereof was master," &c.; "beginning the adventure upon, the said goods and merchandize from the loading thereof on board the said ship as above upon the said ship," &c., "and should so continue and endure during her abode there upon the said ship," &c., " and further until the said ship, with all her ordnance, tackle, apparel," &o., " and goods and [129] merchandizes whatsoever, should be arrived at as above, upon the said ship," &c. "until she had moored at anchor twenty-four hours in good safety, and upon the goods and merchandizes until the same be discharged and safely landed ": liberty to touch, &c. : goods and ship valued, at, &c. Averment of total loss during continuance of the risk, viz. 13th October 1843, by perils of the seas and by stormy and tempestuous weather and the violence of the winds and waves. Plea 2 to the first count. "That the said ship or vessel in the said declaration mentioned was hot, at the time of the commencement of the said risk in the said policy of insurance mentioned, nor at the making of the said insurance, nor on the said 25th day of September A.D. 1843 in the declaration mentioned, seaworthy or in a fit and proper condition safely to go to sea, but, on the contrary thereof, was wholly unsea-worthy." Verification. Replication to the second plea, de injuria. Issue thereon (a). On the trial, before Wightman J., at the sittings in London after Trinity term, 1848, the jury found for the defendant on the above issue ; the verdict, as afterwards entered on the record, being " That the said ship or vessel in the said declaration (b) Reported by C. Blackburn, Esq. (a) See also the statement of the proceedings, p. 151, post. 828 SMALL V. GIBSON 1* Q. B. 130. mentioned was not, at the time of the commencement of the said risk in the said policy of insurance mentioned, nor at the making of the said insurance, nor on the said 25th day of September a.d. 1843 in the declaration mentioned, seaworthy or in a fit and proper condition safely to go to sea, but on the contrary thereof was at those times and each of them respectively wholly unseaworthy." [130] A motion was made, in the following term, for judgment non obstante veredicto; and the Court ordered the case to be set down in the special paper. In Michaelmas term 1849 (a)1, J. P. Wilde shewed cause. The question here is said to be a new one; but that is only because the plaintiffs seek to draw a new conclusion from circumstances that are familiar. They contend : First, that, where the policy is for time, a warranty of...
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