The Lapwing
| Jurisdiction | England & Wales |
| Judgment Date | 08 March 1940 |
| Date | 08 March 1940 |
| Court | Probate, Divorce and Admiralty Division |
Probate, Divorce, and Admiralty Division
Hodson, J.
The Lapwing; Baxendale v. Fane
Wilson, Sons and Company v. Owners of Cargo per the XanthoDID=ASPMELR 6 Asp. Mar. Law Cas. 207 (1887) 57 L. T. Rep. 701 12 App. Cas. 503
Magnus v. ButtemerENR 1852, 11 C. B., 876
Bishop and Another v. PentlandENR 1827, 7 B. & C. 219
Marine insurance Damage to yacht Perils ejusdem generis with perils of the sea
ASPINALL'S MARITIME LAW CASES. 363 Adm.] The Lapwing ; Baxendale v. Fane. [Adm. PROBATE, DIVORCE AND ADMIRALTY DIVISION. [ADMIRALTY BUSINESS]. February 21, 22, 23, 26 ; March 8, 1940. (Before Hodson, J.) The Lapwing; Baxendale v. Fane (a) Marine insurance-Damage to yacht-Perils ejusdem generis with perils of the sea- Institute Yacht Clauses-Master's negligence. The plaintiff claimed for a particular average loss under a policy of marine insurance which insured his yacht against perils of the sea and all other perils ejusdem generis. The policy was subject to the Institute Yacht Clauses, c. 5 of which provided that the insurance also covered damage to hull caused by the negligence of the master. The plaintiff arranged that the yacht should be moved from Southwick to Shoreham for docking. She left for Shoreham in the charge of the manager of the Sussex Yacht Works, the company which was to clean and paint her, and was so negligently docked that she sustained damage. Held, in an action against one of the subscribing underwriters (1) that, although it was intended that the yacht should be docked, it was not intended that she should be so negligently docked as to be allowed to sit on a dangerous bottom, and that the intervention of the negligence of those responsible for the docking provided the fortuitous circumstances entitling the plaintiff to recover in respect of a loss due to a peril ejusdem generis with a peril of the sea, viz., stranding ; and (2) that at the time of the docking the manager of the company was the " master " within the Merchant Shipping Act, 1894, and prima facie responsible for the docking, and that the plaintiff was also covered by clause 5 of the Institute Yacht Clauses in respect of damage to hull caused by negligence, whether or not the damage was due to a marine peril. Action on a policy of marine insurance. The plaintiff, Guy Baxendale, claimed under a policy of marine insurance on his yacht Lapwing the proportion of the subscription of the defendant Charles William Fane. Insurance was against the ordinary marine perils and was subject to the Institute Yacht Clauses, c. 5 of which provided that the insurance was " also specially to cover . . . loss of or damage to hull or machinery directly caused by ... negligence of master, mariners, engineers, or pilots." The plaintiff contended that the Lapwing suffered a particular average loss by perils insured against or alternatively by the negligence of the master or mariners. The defendant denied that the damage, if any, suffered was covered by the policy. H. G. Willmer, K.C., and R. E. Gething (for W. L. McNair, on war service) for the plaintiff. K. S. Carpmael, K.C., Cyril Miller and Stephen Milter, for the defendant. Cur. adv. vult. Hodson, J. - The plaintiff is the owner of the yacht Lapwing and claims for a particular average loss under a time policy of Marine insurance dated the 31st May, 1937, the period covered by the policy being the 25th May, 1937, to the 24th May, 1938. The plaintiff was insured under the policy against perils of the sea and all other perils ejusdem generis and the policy was subject to the Institute Yacht Clauses which provide, inter alia, as follows:- Clause 5 : This insurants also specially to cover (subject to the free of average warranties or any special conditions of the policy) loss of or damage to hull or machinery directly caused by the following : Explosion, bursting of boilers, breakage of shafts or any latent defect in the machinery or bull; Negligence of master, mariners, engineers or pilots provided such loss or damage has not resulted from want of due diligence by the owner of the vessel or any of them or by the managers ; Clause 6 : No...
To continue reading
Request your trial