CASES DETERMINED BY THE COURT OF COMMON PLEAS, AND BY THE COURT OF EXCHEQUER CHAMBER ON ERROR AND APPEAL FROM THE COURT OF COMMON PLEAS, IN AND AFTER MICHAELMAS TERM, XXXVIII VICTORIA. DANIELS v. HARRIS. Marine Insurance-Seaworthiness-Deck Cargo. The warranty of seaworthiness implied in a contract of marine insurance is a warranty that the ship is seaworthy for the purposes of the particular subjectmatter of the insurance. Therefore, in the case of a policy of insurance on deck cargo, it is not a compliance with the warranty of seaworthiness that the ship is fit to encounter ordinary rough weather with safety to herself because the deck cargo is such as may be readily jettisoned in such weather. ACTION upon a policy of marine insurance. The facts, pleadings, and arguments of counsel sufficiently appear from the judgment. At the trial before Brett, J., the jury found a verdict for the plaintiff for the amount claimed. A rule nisi for a new trial on the ground of misdirection was obtained, against which Benjamin, Q.C., and Arbuthnot, shewed cause. Sir J. Karslake, Q.C., Butt, Q.C., and Cohen, Q.C., supported the rule. [The following authorities were cited: Foley v. Tabor (1); Bur(1) 2 F. & F. 663. VOL. X. B 2 1874 Nov. 2. 1874 DANIELS v. HARRIS. ges v. Wickham (1); Quebec Marine Insurance v. Commercial Bank of Canada (2); Weir v. Aberdeen (3); Lidgett v. Secretan (4); Biccard v. Shepherd (5); Gibson v. Small (6); Bouillon v. Lupton (7); Lyon v. Mells (8); Stanton v. Richardson (9); Prescott v. Union Insurance Company. (10)] Cur. adv. vult. Nov. 2. The judgment of the Court (Lord Coleridge, C.J., Brett and Denman, JJ.), was delivered by BRETT, J. In this case the action was brought on a policy of insurance, to recover an alleged total loss by jettison of wine, valued at 70007., loaded on board the steamship Murillo. The policy was "at and from St. Lucar, on wine in casks on or under deck." The wine insured was all on deck, so loaded at St. Lucar after the ship's hold had been filled up with other cargo. The insured wine was jettisoned in bad weather by staving in the casks. The ship and under-deck cargo arrived safe. The defendants pleaded, with other pleas," that the said ship at the commencement of the said insured voyage in the said policy mentioned was not seaworthy." In summing up the case to the jury upon this plea, Mr. Justice Brett commenced by telling them "that the question was whether the defendant had proved that the ship was unseaworthy." "But that means," he said "not only whether the mere ship as a built ship was seaworthy, but whether, loaded as she was with the cargo which she had on board stowed in the way it was, the ship was fit to undergo all the ordinary risks of the voyage upon which she was to sail, at the time of year at which she was to sail. If the ship was not seaworthy in that sense, then the policy fails, because the assured of goods is taken to warrant that the ship is seaworthy. It signifies not whether he is innocent, whether it is in the least degree his fault, if in point of fact the shipowner or the master makes the ship by stowage or otherwise unseaworthy, then, in treating the case as between the two innocent parties, the assured (1) 3 B. & S. 669; 33 L. J. (Q.B.) 17. (2) Law Rep. 3 P. C. 234. (6) 4 H. L. C. at p. 419. (7) 15 C. B. (N.S.) 113; 33 L. J. (C.P.) 37. (8) 5 East, 428. (9) Law Rep. 7 C. P. 421, (10) 1 Whart. Penn. 399. and the underwriter, it is the assured, and not the underwriter, who has to lose. The question is not whether the goods themselves were at more than ordinary risk: goods on deck are always assumed to be at more than ordinary risk. If the fact of their being on deck does not affect the safety of the ship, their own additional risk is immaterial: the question is whether the putting the goods on deck did or did not make the ship unseaworthy. The question for you is whether the ship, that is, including the cargo on and under deck, was in a fit condition on leaving St. Lucar to encounter with safety the ordinary perils of an ordinary voyage from St. Lucar to England at that time of the year. Your answer must depend upon the view you take of the evidence, and upon the exercise of your own knowledge and judgment." The learned judge, in commenting on the evidence, said: "No one would be of opinion that either for the cargo itself or for the ship it is as good a way to load cargo on deck as to put it under deck: but does it or does it not make a great difference, in your judgment, what kind of deck cargo there is? If the deck cargo had been stiff machinery, heavy rigid machinery, which could not have been got rid of from off the deck in bad weather, if the weight of such a cargo had been anything like the weight of this wine, you would probably say that, with such a weight on deck, and the impossibility of getting rid of it, the state of things would have been very dangerous for the ship: but then the real point for you is, whether you think it makes a difference in that respect that the cargo could be dealt with as this cargo could be. The weight of it, as weight, was liquid. How would you get rid of wine incumbering the ship on deck? How long would it take the ship's carpenter and his men to stave the casks? What would be the effect on the ship of letting the wine run out? The question is, not of danger to the wine, but of danger to the ship. I apprehend myself that you will all be of opinion that having this deck cargo did add to the difficulties of the ship, and that, unless it could have been got rid of, and with tolerable quickness, it would have been a danger to the ship to the extent of making her unseaworthy. But the question is, what is the effect, in your judgment, of the facility of starting the wine. I cannot help thinking that the fact of having a deck cargo does necessarily add to the danger of a 1874 DANIELS บ. HARRIS. 1874 DANIELS v. HARRIS. ship; but the question is, whether it puts her into so much danger as to make her unseaworthy, that is to say, whether it puts her in danger of being unable to meet the ordinary rough weather of the voyage on which she is sailing.” Speaking of what would be an ordinary voyage in this case, the learned judge said: "It would not be right to say that, for a ship coming across the Bay of Biscay in February, an ordinary voyage means a voyage without rough weather. It is clear that, coming across the Bay of Biscay and up the English Channel at that season, you must meet with rough weather. Therefore it is not to be taken to be sufficient that the ship would be able to encounter without danger smooth or fair weather, but the question is whether she would be able to encounter without danger rough weather also. But there is at every season of the year some weather rougher than the ordinary rough weather of that season; and, although the ship ought to be able to stand, not only the smooth, but also the ordinary rough weather of the season in which she sails, yet the value of insurance is that it insures against damage or loss by reason of the rougher weather than the ordinary rough weather of the season. Therefore you are not to consider whether this ship. would have been safe without rough weather: she was bound when she left St. Lucar to be in such a condition with regard to herself and her cargo as to be able to surmount the ordinary occurrences of an ordinary voyage in that season, including the rough weather, which must be anticipated at that time of year: and the question for you is this, It being a fact clearly proved, as I think, that, if the cargo could not have been got rid of, the ship would have been in great danger in a voyage with the ordinary rough weather of the season, the question is whether your view of that state of things is modified by a consideration of what kind of cargo it was. on deck, and the mode in which such a cargo could be got rid of. If you are of opinion that that kind of cargo, although it was too heavy for the comfort of the ship, and as long as it existed of that weight was a danger to the ship, yet, when ordinary danger came on, that is, the ordinary rough weather came on, it could be got rid of so quickly that practically it did not endanger the ship, although it endangered itself; then you may say that the ship was seaworthy, notwithstanding the weight of the cargo on deck. But, |