Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 INSURANCE.

Wilsonand Company, Merchants in Glasgow,
v.
Elliot and Others

Date: 23 January 1776

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Wilson and Company, intending to send some tobacco from Carron to Hull, sent the tobacco to Carron; and a few days after, their broker, by their order, presented a policy to be underwrote by Elliot and others, to insure the tobacco from Carron to Hull, with liberty to the ships to call as usual, Upon the remonstrance of Elliot, &c. that this liberty was too general, some communing passed betwixt them and the broker; and it was filled up, with liberty to call at Leith, but without authority from Wilson and Company. By this time the vessel was sailed; but instead of calling at Leith, by direction of her owners, she called at Morison's Haven, without the knowledge of the insurer or insured, or the broker; and after staying four or five days, and taking in a cargo of victual, she sailed for Hull, and was next day, after regaining the line of course from Carron to Hull, lost in a storm of snow, near to Holyisland.

In three several pursuits before the Judge-Admiral, at the instance of Wilson and Company against the Underwriters, the Broker, and the Carron Company, owners of the vessel; the proceedings against the two last having been staid, Wilson and Company went on against the underwriters. But the Judge found, That, in all cases of insurance of goods on shipboard, belonging to others than the owners and master of the ship, it is a general rule in law and practice, that the insurance is effectual, although the loss may have happened in a deviation from the voyage upon which the insurance is made, the insured not knowing of nor consenting to such deviation; therefore, he found the underwriters liable, and decerned accordingly. And in a suspension, the Lords, 23d January 1776, though they did not adopt his ratio decidendi, yet having considered the policy of insurance, and whole circumstances of the case, they found the letters orderly proceeded, and decerned.

Had the loss happened in the act of deviation, it is probable the Lords would have followed the precedent, in the case Steven and Company against Douglas. But in this case the ship had regained the course from Carron to Hull, and was lost in that course. The difference between calling at Leith and calling at Morison's Haven appeared minute and inconsiderable: the ship was no longer detained at the one place than she would have been at the other; and if every trifling alteration of a voyage was to be considered as a deviation, all insurance at sea would be at an end.

Cases and opinions of lawyers and Judges in England were quoted on both sides. The question was not without difficulty.

The Lords, upon advising a reclaiming petition and answers, adhered.

This cause was appealed; and the decree was reversed by the House of Lords, 25th November 1776. The Underwriters were found not liable for the sums insured, but only to repeat the premium.

Lord Mansfield, it is said, considered it as a clear deviation,—and that the question came simply to this, was Leith Morison's Haven? An allowance was given to call at Leith, but none to call at Morison's Haven. He instanced a policy on a ship to sail from the Downs with convoy, but the convoy having sailed, she followed and came up with it at Portsmouth, the underwriters were liberated. The terms of policies of insurance must be strictly adhered to, otherways all insurances would be at an end.