The Bedouin
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 1893 |
| Date | 15 November 1893 |
| Court | Court of Appeal |
Admiralty - Marine Insurance - Charterparty - Chartered Freight - Perils of the Sea - Delay through Breakdown of Machinery - Causa proxima - Non-communication of material Fact.
By a charterparty the charterer agreed to pay the plaintiffs so much monthly in advance for the hire of their vessel, for the space of one voyage to South America and back to Europe, provided that “in the event of loss of time by …. breakdown of engines or machinery …. and the progress of the steamer is thereby delayed for more than twenty-four running hours, payment of hire to cease until such time as she is again in an efficient state to resume her voyage.”
By a slip initialled by the defendant the risk to be covered by insurance was described as “freight chartered and/or as if chartered on board or not on board” for three months, “one-third diminishing each month.”
By a policy executed in accordance with the slip the perils against which the defendant undertook to indemnify the plaintiffs were “of the seas,” &c., in the usual form.
The plaintiffs' vessel sailed under the above charter, and before the three months expired, owing to the thrust-shaft parting, she had to be towed into St. Vincent. Payment of hire consequently ceased during the twenty-eight days' delay caused by the accident.
In an action brought by the plaintiffs on the policy to recover the amount so lost, Gorell Barnes, J., found as a fact that the damage to the thrust-shaft war caused by sea perils, and:—
Held, by the Court of Appeal (Lord Esher, M.R., Lopes and Kay, L.JJ.), affirming the decision of Gorell Barnes, J., that the defendant was liable, as (following and approving The Alps [
APPEAL by the defendant, Robert Bradford, an underwriter at Lloyd's, against a decision of Gorell Barnes, J., dated June 21, 1893, holding the defendant liable in an action by the plaintiffs, the Bedouin Steam Navigation Company, Limited, to recover the sum of 12l. 8s. 7d., being the amount applicable to the defendant's subscription of 40l. upon a policy for 1500l. on chartered freight.
The facts were shortly that:—
On July 26, 1889, the plaintiffs' screw steamship Bedouin was chartered from August 7, by the Compagnie Maritime du Pacifique of Havre, for “the space of one voyage to South America and back to a port in Europe not north of Hamburg,” freight to be “at and after the rate of 955l. 10s. per calendar month, and at and after the same rate for any part of a month, and to be paid monthly in advance,” and “in the event of loss of time by deficiency of men, want of stores, breakdown of engines or machinery, or other cause appertaining to the owners, and the progress of the steamer is thereby delayed for more than twenty-four running hours, payment of hire to cease until such time as she is again in an efficient state to resume her voyage.”
On August 9, the plaintiffs, through their brokers in London, insured the freight per Bedouin.
The material portion of the slip initialled by the defendant and other underwriters ran as follows: “3 months @ sailing probably 11th inst. Freight chartered and/or as if chartered — on board or not on board — full interest admitted — ⅓
A policy dated August 15 was drawn in accordance with the slip, the insurance being described as “for and during the space of three calendar months, commencing 11th day of August 1889, and ending 10th day of November 1889, both days inclusive” on “freight chartered and/or as if chartered on board or not on board, premium 15s. per cent.” In the margin there was a clause “⅓
On August 11, 1889, the Bedouin sailed with a general cargo, under the above charterparty from Liverpool for ports on the West Coast of South America viâ Havre and Bordeaux.
On August 23, having called at the latter ports and shipped further cargo, she proceeded on her voyage, experiencing a high swell, and subsequently a high sea on the starboard bow, causing the vessel to pitch heavily at times, and the engines to race, whilst the after crank-pins, main and thrust bearings were found to be running warm.
On September 2, the vessel was brought to an anchor in St. Vincent Harbour, and the thrust bearings were then examined, but no cause for the heating could be found. On the 3rd the vessel, having coaled, left the harbour. On the 5th, in fine clear weather, with a smooth sea, the thrust-shaft was found to be badly gone at the after-side of the first collar, and shortly afterwards the shaft parted.
On the 8th the master of the Bedouin made an agreement with a passing steamer to tow him back to St. Vincent, where the vessel was safely anchored on the 11th, and a new shaft having been sent out there and fitted, the Bedouin, after a delay of twenty-eight days, during which payment of hire ceased, left on October 3, and delivered her cargo at the various ports of destination on the west coast of South America.
June 20, 21. The case was tried on a written statement of facts to which was annexed the charterparty, slip, policy and average statement, but the parties agreed that evidence might be called by the defendant on the following points, viz., that the terms of the slip did not give him information that he was insuring hire payable under a time charter — that the fact that the proposed subject-matter of insurance was of this nature would materially influence an underwriter in accepting the risk, and — that the ordinary rate for a hire risk is largely in excess of that charged for a freight risk.
The effect of this evidence is stated in the judgment of Gorell Barnes, J.
It was admitted by the plaintiffs that the defendant was not actually informed at the time of initialling the slip that the hire was payable under a time charter, but it was contended that as the slip contained the diminishing clause above set out, the nature of the risk was sufficiently indicated.
Joseph Walton, Q.C., for the plaintiffs. So far as regards the liability of the defendant for loss of hire, the case is covered by The Alps.F1
[He was stopped by the Court.]
Cohen, Q.C., and Hurst, for the defendant. There was no loss by perils insured against as the loss (if any) was due to delay causing the ship to remain idle, and was not proximately caused by a peril of the sea. The defendant does not say that the ship was unseaworthy, or that the shaft was not a fit one, but the contention is that there is no evidence that the breakdown was due to a peril of the sea, for the language of the log and surveys will not bring the loss within the expression “perils of the sea” as defined in Thames and Mersey Marine Insurance Co. v. Hamilton.F2
The underwriter only indemnifies the assured against such losses as are caused by the direct and violent operation of the perils insured against, and not against loss by the ordinary wear and tear of the voyage: Arnould on Marine Insurance, 6th ed., p. 720, citing Covington v. Roberts.F3 There was no such extraordinary weather as to make the accident to the shaft a loss by perils of the sea.
Secondly, no part of the chartered freight was lost, as the shipowner would ultimately earn his whole freight, and...
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