Wilson and Another v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 1764 |
| Date | 10 July 1764 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 975
IN THE COURT OF KING'S BENCH
S. C. 1 Black. 507.
Referred to, Price v. Al ships, &c., Association, 1889, 22 Q. B. D. 591.
8 BURR. 1MO. WILSON V. SMITH 975 [1650] wilson and another versus smith. Tuesday, 10th July, 1764. [S. C. 1 Black. 507.] Insurance free from average unless general does not extend to the damage received by the goods in a storm. [Referred to, Price v. A\ Ships, &c., Association, 1889, 22 Q. B. D. 591.] This was an action on the case brought upon a policy of insurance, for the recovery of 561. 19s. 8d. per cent, being the damage received by a cargo of wheat on board the " Boscawen," insured at and from Lancaster to Rotterdam : which wheat was valued, by agreement, at 30s. per quarter. The policy was in the ordinary form. The premium was five guineas per cent. And in case of loss, the assured to abate 2 per cent. And the assurers to be free from average under three pounds per cent, unless () general, or the ship shall be stranded.(i) The policy was thus underwritten- " N.B. Corn and fish are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides, and skins are warranted free from average under five pounds per cent, and all other goods, free from average under three pounds per cent, unless general, or the ship be stranded," Warranted well in port the 16th day of February 1760. The defendant underwrote this policy for 1001. on 20th February 1760. The defendant having pleaded the general issue, the cause came on to be tried at Guildhall, London, on the loth of February 1764, before Lord Mansfield. The ship, with her cargo, being wheat belonging to the plaintiffs, sailed from Lancaster the 21st of February 1760. After her departure from Lancaster, and before her arrival at Rotterdam, to wit, on the 22d day of February 1760, sailing and proceeding on her voyage, she met with a violent storm, and was by and through the force of winds and stormy weather obliged to cut away and leave her cable and anchor, for the safety of the ship and cargo; and was also greatly damaged, and obliged to run to the first port (being Liverpool) to refit; and that the expence of refitting the ship amounted to 381. 15s. per cent. That the hatches of the said ship were not opened at Liverpool: but the ship, being refitted, on the day of [1551] February 1760, sailed from Liverpool for Rotterdam with the cargo and arrived thereon the day of February, and there landed her cargo of wheat. That upon unloading the wheat, it appeared that it had received damage by the said storm, to the amount to 561. 19s. 8d. per cent. The single question was (upon the true construction and meaning of the words " free from average, unless general, or the ship be stranded,") "whether the plaintiffs can, under the circumstances of this case, recover in this action, for the damage of 561. 19s. 8d. per cent." (the 381. 15s. per cent, not being disputed). On Friday 25th of May last, Mr. Dunning argued for...
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