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 A ship warranted to sail with convoy, though she did not sail till several days after the convoy, overtook it, and a few weeks afterwards were separated from the fleet in a gale; and was finally taken by the enemy. The Court found the Policy null.

Robert Dunmore and Company
v.
Richard Allan and Others

Date: 27 June 1786

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[Fac. Coll. IX. 432; Dict. 7101.]

Henderland. A policy of insurance is a contract stricti juris: here the question is, What risk was undertaken? It was of a ship warranted to sail or to depart with convoy. Now, the fact is, that the ship insured sailed without convoy, and did not join the fleet for three weeks: had she been taken before she joined convoy, the insurers would not have been liable. How then could they afterwards become liable? The insurers undertook no risk unless the ship sailed with convoy; it is not enough to say that she afterwards overtook it and joined it.

Justice-clerk. Insurers are only liable for the risk undertaken: It is nothing to say that the risk run was less than the risk undertaken. The question is, Was the condition of the policy fulfilled, or was it not? It was not; for the ship sailed without convoy, neither did she see the convoy for three weeks after sailing. There have been various cases decided in the King's Bench on the principles which I have laid down.

President. I once was of opinion that a contract of insurance was bona fide; and so I gave my judgment in the case of the ship that touched at Morrison's Haven, but the House of Lords corrected me, and found that it was a contract stricti juris. On reconsidering the case, I became satisfied of my mistake.

Eskgrove. Were it not for the judgment of the House of Lords, I should think, that, where the risk is not increased, the policy ought to be held subsisting. I see no evidence of the premium being demanded back and repaid, in a case where convoy was not joined, and yet the ship arrived safe: here is a rigorous advantage when there was no mala fides or evil intention on the part of the insured.

On the 27th June 1786, “The Lords suspended the letters;” adhering to the interlocutor of Lord Braxfield.

Act. Ilay Campbell. Alt. Wm. Craig.