Incomplete or false information or concealment vacates the policy.
Bain v. Kippen
Date: 20 November 1783 Case No. No 10.
Concealment of the destination of a ship voids the insurance, though the loss should happen prior to actual deviation from the voyage specified to the insurer.
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Kippen made insurance for Bain upon a vessel 'at and from Rothsay, in the frith of Clyde, to the Isle of Man, and from thence to the Broomielaw of Glasgow.' There afterwards occurred reason to apprehend that her distination really was to fish off the Isle of Man; an adventure attended with more hazard, and entitling the pursuer to a higher premium.
The ship proceeded from Rothsay in the island of Bute, on her voyage towards the Isle of Man; and having been, by stress of weather, driven back to the former island, she was there stranded and wrecked.
Bain having sued Kippen for the insured value before the High Admiral Court, the cause was thence, at the defender's instance, removed into the Court of Session.
Pleaded for the defender; The voyage for which the vessel was destined being different from that specified in the insurance, no action can lie on the policy. Consensus in idem placitum, is essential to every contract; but whatever may have been the object of the pursuer, a fishing voyage, so different from that described, was not in the view of the defender, who therefore could not contract, nor incur any obligation with respect to it. Yet this perhaps is not the strongest aspect of the cause. By concealing his purpose of setting out his vessel on a fishing adventure, under the false description of another voyage, accompanied with much less risk, the pursuer was commiting a fraudulent act? and, dolus dans causam contractui, reddit contractum nullum. If then no obligation could thence arise against the defender, it is of no consequence to enquire in what manner the loss in question occurred, or whether it happened while the course of the voyage described coincided with, or deviated from that intended, and concealed. On this principle the Court decided in the case of Buchanans contra Hunter-Blair, No 7. p. 7083.
Answered, It is not denied by the defender, that the vessel was wrecked in the course of that very voyage which he acknowledges himself to have covered by his insurance. 'The risk then actually run was precisely that understood by him to be run,' and that on account of which he received his premium: Nor can any thing be more idle than to talk of a mere unexecuted design of running a different risk. Nay, of an actual deviation the effect could not have been to hurt the defender, since it would instantly have relieved him from his obligation, whilst it left him in possession of his premium.
The Lords assoilzied the defender, by suspending the letters simpliciter.
In a reclaiming petition, the pursuer having offered to prove, that the destined voyage was not for the purpose of fishing, but truly such as was described to the defender, the Court allowed the proof to be adduced.
Lord Ordinary, Braxfield.Act. Cha. Hay.Alt. Rolland.Clerk, Home
Fol. Dic. v. 3. p. 326. Fac. Coll. No 126. p. 200.
