Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INSURANCE.
Subject_3 Deviation.

William Wilson and Company
v.
Alexander Elliot and Others

Date: 23 January 1776

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[Fac. Coll., VII, 208; Dict., App. No. I.; Insurance, No. I.]

Hailes. In the case of Steven and Douglas, we had the opinion of Mr Dunning, and no opinion to the contrary. Now we have again the opinion of Mr Dunning, and also that of Mr Wallace, who has great experience in maritime matters, and we have no opinion of lawyers to the contrary. I must therefore hold, that they speak the opinion of the Courts where questions of insurance have been more frequently agitated, and are better understood than with us.

Gardenston. I prefer the opinion of practical merchants to that of lawyers, however eminent: and here we have the opinion of merchants opposed to that of lawyers. Instead of touching at Leith, the ship went on to Morrison's Haven; it. suffered nothing there, but came out safe, and afterwards was lost when it was in the course confessedly insured. In the case of Steven against Douglas, the loss was during the deviation. I think that, on a fair construction of the policy, the insurers are liable.

Kaimes. My simple opinion is, that insurers and insured ought to act strictly, and that courts of justice ought to observe the same exactness. As to this particular voyage, it matters little; but it is of moment that a general rule be observed: if it be broke through here, it will, by degrees, be broke through in other cases, and this will open a door to lawsuits, which are always to be avoided, especially in mercantile matters.

Kennet. There is a difficulty here, because the deviation was small, and that the ship was not lost till after it had returned into the course insured. The ship had liberty to call at Leith; this excludes the liberty of calling at any other port. She went to Morrison's Haven, which lengthened the voyage and increased the risk.

Covington. The insurers are liable if the deviation was not the cause of the loss.

Elliock. I was not present at the determination of the case of Steven against Douglas, and I doubted as to the judgment. If the policy was once forfeited by the deviation, it could not afterwards revive by the ship's returning into its course.

Justice-Clerk. In Douglas's case, the vessel was lost in the course of the deviation. If we go into so judaical an interpretation of a policy of insurance as that here contended for, we shall ruin all insurance in this country, and oblige our merchants to insure in England, where the notions of underwriters are more liberal. In this case we have the opinion of the most eminent underwriters at London that the insurers are liable.

Monboddo. I should have great respect for those opinions, had I seen the case on which their judgment was founded. If there was a deviation, the insurance was voided.

Auchinleck. Insurance is a bona fide contract: he who insures one voyage is not liable for another; but I do not see any deviation here.

Kaimes. If the policy had said, “You have liberty to touch at Leith, but nowhere else,” could the insured have gone bona fide to Morrison's Haven? Is not what has happened equivalent to the case put?

President. In the case of Steven against Douglas, I thought, at first, that the underwriters were bound, but I altered my opinion on seeing the sentiments of the merchants in England. I perceive we have the opinion of some of those very merchants on the side of the insured, and that on a good ground of equity: a certain degree of deviation was allowed in this case; and, besides, the insurers here signed a policy not in the terms of the order of the broker. They ought to have signed it as presented to them, or not at all.

On the 23d January 1776, “The Lords repelled the reasons of suspension.”

Act. A. Crosbie. Alt. Ilay Campbell. Reporter, Alva.

Diss. Hailes, Monboddo.

[More should have dissented, from the tendency of their arguments, but they were moved by specialties.]

Reversed on appeal.