Wilson against Rankin
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1865 |
| Date | 28 November 1865 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 1173
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. L. R. 1. Q. B. 162; 35 L. J. Q. B. 87; 13 L. T. 564; 14 W. R. 198. See Dudgeon v. Pembroke, 1874-77, L. R. 9 Q. B. 581; 1 Q. B. D. 96; 2 App. Cas. 284.
[208] wilson against rankin. [Tuesday, November 28th], 1865.-Marine insurance. Deck loading. 16 & 17 Viet. e. 107, ss. 170, 171, 172. Authority of master of ship. Statutory unseaworthiness.-1. Where the master of a ship, whose cargo consisted of timber and wood goods, cleared out and sailed from a British port of North America for a port in the United Kingdom, with part of the cargo on deck, in violation of The Customs Consolidation Act, 1853, 16 & 17 Viet. c. 107, ss. 170, 171, 172: held, by the Queen's Bench, and affirmed by the Exchequer Chamber, that this did not vitiate a policy of insurance by the owner of the ship and cargo, unless at the time of the insurance he was privy to the act.-2. Where on such a voyage the whole of the cargo on freight was stowed below deck, but the captain took on deck a quantity of spars and other articles for the owner, with the object of saving expense in obtaining the materials necessary for refitting the vessel after the voyage: held a violation of the statute.-3. A ship sailing upon such a voyage, without having obtained a certificate of having cleared out with no deck cargo on board, is not a statutory unseaworthiness. [S. C. L. E. 1 Q. B. 162; 35 L. J. Q. B. 87; 13 L. T. 564; 14 W. E. 198. See Dudgeon v. Pembroke, 1874-77, L. E. 9 Q. B. 581; 1 Q. B. D. 96; 2 App. Cai. 284.] This was an action on a valued policy of insurance on freight, on a voyage from Restigouch to Liverpool, for a total loss by peril of the sea. Pleas. First. Traverse of the loss by peril of the sea. Second. Unseaworthiness. The third plea was struck out by consent. Fourth. That the policy was made and the cargo, the freight in respect of which was insured, shipped after stat. 16 & 17 Viet. c. 107, came into operation; that the cargo consisted of timber and wood goods, and that Eestigouch was a British port in North America, and that the ship with the cargo cleared out and sailed from Restigouch after the 1st September, 1861, and before the 1st May, 1862, and that 1174 WILSON V. BANKIN 6 B. ft 8.209. at the time of sailing a part of the cargo was not below deck, and the master had not obtained from the clearing officer any certificate that the whole of the cargo was below deck, contrary to the statute, and that the plaintiff was the owner of the ship. Fifth. That the allegations in tbe fourth plea were true, [209] and that the plaintiff intended the vessel to sail so loaded, and made the policy for the express purpose of protecting the adventure so prohibited by the statute in question. The plaintiff joined issue on the two first pleas, and demurred to and traversed the two last. Joinder in demurrer, and issues. On the trial, before Shee J., at the Liverpool Spring Assizes, 1864, it appeared that the vessel sailed at the time alleged with the whole of the cargo that was on freight properly stowed below deck; but that the master took on board a quantity of apars and other articles for the plaintiff, his owner, to be carried to Liverpool, which were placed on deck. This he did in the exercise of his general authority as master without any instructions from the plaintiff; his object being to save expense to his owner in obtaining the materials necessary for refitting the vessel in Liverpool after the voyage. The jury found that the vessel was not in fact rendered unsea-worthy by this deck load; that the spars and other articles on deck were more than were required for the ship's use on the voyage; and that the plaintiff was not aware of the conduct of the master till after the policy was made and the ship had sailed. The learned Judge ruled, on the construction of the proviso in the 171st section of the 16 & 17 Viet. c. 107, that the spars &c. in excess of what were required for the voyage were cargo within the meaning of the enactment, and he directed the verdict to be entered for the defendant on both pleas, giving the plaintiff leave to move tu enter the verdict for him. A rule was accordingly obtained, in Easter Term, 1864, which came on for argument along with the demurrers. The case turned on The Customs Consolidation Act, [210] 1853, 16 & 17 Viet. c. 107, sb. 170, 171, 172 (a). Sect. 170. "Before any clearing officer permits any ship, wholly or in part laden with timber or wood goods, to clear out from any British port in North America or in the settlement of Honduras for any port in the United Kingdom, at any time after the 1st day of September or before the first day of May in any year, he shall ascertain that the whole of the cargo of such ship is below deck, and shall give the master of such ship a certificate to that effect: and no master of any ship so laden shall sail from any of the ports aforesaid for any port of the United Kingdom, at any such time as aforesaid, until he has obtained such certificate from the clearing officer." Sect. 171. "No master of any ship in respect of which such certificate as aforesaid has been obtained shall place, or permit or cause to be placed or remain, upon or above the deck of such ship, any part of the cargo thereof, until such ship has arrived at the port of her destination: Provided always, that if the master of any such ship consider that it is necessary, in consequence of the springing a leak or of other damage received or apprehended during the voyage, to remove any portion of the cargo upon deck, he may remove or cause to be removed upon the deck of such ship so much of the cargo, and may permit the same to remain there for such time, as he considers expedient; provided also, that the store spars or other articles necessary for the ship's use shall not be taken to be the cargo for the purposes of this Aet." Sect. 172. "If any master of any ship for which such [211] certificate as aforesaid is required sails or attempts to sail without having obtained such certificate, or places or permits, or causes to be placed or to remain or be, upon or above the deck of such ship, any part of the cargo thereof, except in the cases in which the same is not hereby forbidden, he shall for every offence forfeit and pay any sum not exceeding 1001." The demurrers and the rule were argued together, in Michaelmas Term, 1864, 8th November, before Cockburn C.J., Crompton J. (who left the Court during the argument), Blackburn and Mellor JJ. Mellish and Cohen, for the defendant.-First, The fourth plea is good. A deck cargo taken on board in violation of an Act of Parliament, is a statutory unsea- (a) Sects. 170, 171 and 172 are repealed by The Merchant Shipping Acts Amendment Act, 1862, 25 & 26 Viet. c. 63, s. 2, which passed the 29th July, 1862, " except as to any liabilities incurred before such appeal." 6B.ft8.aa WILSON V. BANKIN 1175 worthiness. The violation of stat. 16 & 17 Viet. c. 107, rendered the whole voyage illegal; and although not shewn to have been done with the authority of the owner, it is the same thing when done by the master who was acting as his agent. The statute proceeds on the principle that at certain periods of the year deck loading on crossing the Atlantic is dangerous. If the statute had not passed the underwriter would either have obtained a warranty that no deck cargo should be taken, or fixed a danger premium on a ship carrying it. Since the statute a policy providing that deck cargo should be carried would be illegal, and consequently there is in every policy an implied warranty that such will not be taken. There is no case precisely in point, though there are several bearing on the question. Thus, a violation of the pilot laws vitiates a policy of insurance on goods; Law v. Hollingsworth (7 T. E. 160): illegal [212] traffic by a ship avoids a policy of insurance on her; Bird v. Appletcm (8 T. R. 562): as does also the fact of her sailing without her captain having obtained a certificate required by a statute; Farmer v. Legg (7 T. E. 186). [They also referred to Bell v. Carstairs (14 East, 374).] Secondly. At all events the fifth plea, which alleges that at the time of the assurance the assured was privy Co the illegal act of the captain in taking deck cargo, is good; Gunard v. Hyde (E. B. & E. 670, and again 2 E. & E. 1). Thirdly. The taking these spars on deck under the circumstances disclosed at the trial was an infringement of the statute. [On this they were stopped, the Court saying that the pleas might be amended, if necessary.] Brett and Milward, for the plaintiff.-Neither of the pleas demurred to alleges that the ship was unseaworthy, and the jury have found that she was not. Deck cargo: does not render a ship unseaworthy unless it is in sufficient quantity to render her ao in reality. The fourth plea is bad ; for the penalty for violation of this enactment is imposed od the captain, not the assured, who knew nothing of it till after the loss of the ship. On this subject the cases of Cunard v. Hyde (E. B. & E. 670, and again 2 E. & E. 1) are authorities for the plaintiff. 1 Phill. Ins. 214, 3rd ed., "It is a general principle of law, that, if a contract be intended to indemnify the owner from loss on property by reason of its being implicated in an illegal trade, or applied to an illegal use, or which, according to the laws of the country where the contract [213] is made, it is criminal for the owner to hold, such contract is void." Id. 221, " So, where the master in the course of the voyage took on board a smuggled chain cable, though he had intended so to do at the time of sailing, Mr. Justice Story said it ' was a collateral act, no more touching the legality of the voyage than if there had been taken on board some illegal ship-stores,1 and accordingly held that the policy on the ship was not thereby defeated. So not stowing water below deck, as required...
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