West of Scotland Ship Owners Mutual Protection and Indemnity Association (Luxembourg)v Aifanourios Shipping S.A. (Aifanourios)
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1980 |
| Docket Number | No. 32. |
| Date | 26 June 1980 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Wylie.
Insurance—Marine insurance—Release calls—Action of payment—Arrestment on the dependence—Undertaking given as condition for release of arrestment—Undertaking void if arrestment not permitted by law—Whether arrestment permitted by law—Administration of Justice Act 1956 (cap. 46), sec. 47 (1) and (2).1
Ship—Marine insurance—Action of payment of release calls—Arrestment on the dependence—Undertaking given as condition for release of arrestment—Undertaking void if arrestment not permitted by law—Whether arrestment permitted by law—Administration of Justice Act 1956 (cap. 46), sec. 47 (1) and (2).1
West Of England Shipowners Mutual Protection And Indemnity Association (Luxembourg) raised an Admiralty action in remand in personam against Aifanourios Shipping S.A. for the payment of release calls in respect of the termination of a period of insurance of the motor vessel "Aifanourios" owned by the defenders. The payments were due under rule 41 (A) of the rules of the pursuers' association. Conclusion 1 of the Summons (as amended) was in the following terms:—"For payment to the pursuers by the defenders of the sum of U.S.$26,370.97 with interest thereon at the rate of 15 per centum per annum from 3rd May 1978 until payment, or
the sterling equivalent of the said sum and interest at the date of payment or at the date of extract, whichever is the earlier."The facts appear from the opinion of Lord Wylie.
The pursuers pleaded:—"(1) The defenders being bound and obliged in terms of said contract of marine insurance to make payment to the pursuers of the sum sued for and they having failed to do so, all as condescended upon, decree should be pronounced as first concluded for. (2) The sum sued for being due and resting owing to the pursuers by the defenders, decree therefor should be pronounced as concluded for. (3) The pursuers, having arrested the said vessel on the dependence of the action, are entitled to have the same made forthcoming so far as necessary in satisfaction of the said debt."
The case was heard on procedure roll on 27th and 28th May 1980 before the Lord Ordinary (Wylie). On 26th June 1980 Lord Wylie repelled the third plea in law for the pursuers as amended; and sustained the first two pleas in law for the pursuers and pronounced decree in terms of the first conclusion of the summons as amended.
An insurance association raised an action for payment of certain release calls under a contract of marine insurance over the defenders' vessel and its cargo. The insurance association arrested the vessel on the dependence of the action. A letter of undertaking was subsequently granted which provided for payment of such sum as might be due as a condition for the release of the arrestment. The letter of undertaking was stated to be void if the arrestment was not permitted by law. The insurance association sought, inter alia, to have the vessel sold and the price made furthcoming in satisfaction of the release calls which were found due. The defenders contended that the contract of marine insurance was not one within the meaning of sec. 47 (2) (d) or (e) and that the arrestment was therefore not permitted by law.
Held, after a procedure roll hearing, that a contract for the insurance of a vessel and its cargo did not come within the provisions of sec. 47 (2) (d) or (e) of the Administration of Justice Act 1956; and accordingly the insurance association were not entitled to have the vessel sold and the price made furthcoming.
LORD WYLIE'S Opinion.—This action arises in respect of a claim for payment of certain release calls under a contract of marine insurance whereby the pursuers accepted for insurance of protection and indemnity risks the motor...
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