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SCOTTISH_HoL_JURY_COURT

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(1791) 3 Paton 232

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

[Mor. p. 7099.]

No. 53

John Laird, Appellant

v.

Messrs. Robertson & Co. Respondents

House of Lords, 20th April 1791.

Subject_Insurance — Deviation. —

A vessel was insured from Virginia to Rotterdam, “with liberty to call at a port in England.” She sailed direct for Hull, and was lost on her voyage to that port. Held by the Court of Session, that a voyage from Virginia to Rotterdam, with liberty to call at a port in England, gave a liberty to call at any port in England, and therefore to call at Hull. Reversed in the House of Lords, and case remitted to pass the bill.

This was an insurance made of a ship and cargo from Virginia to Rotterdam, “with liberty to call at a port in

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England.” After the policy was drawn out, information was received that the vessel was not to go to Rotterdam, but to discharge at Hull in England. The insured obtained an indorsement on the policy to that effect, signed by all the insurers except the appellant, who declined.

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June 2, 1790.

Nov. 16,——

The vessel was lost on her voyage, and action was raised before the Court of Admiralty against the appellant for his part of the sum assured, and decree obtained. He offered a bill of suspension, arguing that, as the policy stood originally, and by which only he could be bound, the voyage insured was different from that on which the vessel sailed. It was answered, that the original policy contained liberty to call at a port in England, and that a port meant any port in England. The Lord Ordinary refused the bill of suspension, and, on reclaiming note, the Court adhered. ^*

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* Lord Justice Clerk, Eskgrove, and the other Judges, for adhering.

Lord President Campbell (with whom was Lord Hailes) for

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Against these interlocutors the present appeal was brought to the House of Lords.

Pleaded for the Appellant.—The ground of the judgment below was this:—That liberty to call at a port in England implied a power to call at any port without distinction, whether such port might be in the course of the voyage to Rotterdam or not; that of consequence the policy gave a power to call at Hull. And, supposing this to be the case, a liberty to discharge at Hull must also be implied, as by this means the voyage would only be shortened, and the risk lessened. But the appellant maintains that this proceeds upon a mistake, in supposing that the liberty to call at a port in England gave a power to call at any port. In all policies, the line of the voyage to be insured is specified. If it is a trading voyage, the several ports are particularly mentioned. If it is not a trading voyage, the loading and discharging ports are the points or extremes; and the voyage insured is the usual line or course of navigation between these two. A liberty to call at other ports, sometimes in more limited, sometimes in more general terms, is given; which is often necessary for various purposes different from the unloading the cargo. It may be for leaving or receiving advices, or to put out, or take in passengers. But these import liberty only to call at some intermediate port in the course of the voyage, lying in the usual tract between the two ports specified as the two extremes. While, on the other hand, if it be intended to call at a port, not in the course of the voyage, that port must be mentioned in the policy. In the

_________________ Footnote _________________

altering.—The Lord President said, “That it was a very general point, and ought to be reconsidered.—Doubt if the interlocutor right. It rather seems to have been a new voyage, and new adventure altogether; and of course that the first policy was discharged.—Mr. Gammell himself seems to have considered the matter in that light. The argument in the petition is very strong, and is not taken off by the answers.—I am satisfied that it was a new undertaking. The change in the printed part of the policy ‘with liberty to call at any port or place,’ is not regarded, unless a special place be named. Vide chapter, ‘Deviation,’ in Park on Insurance.—Carter and Townshend. The printed clauses are little attended to.—Meant for cases of necessity.—Besides, the vessel never set out upon the voyage insured; and no vessel would go from Hull in her way from Virginia to Rotterdam, which, in reality, would not be shortening the voyage.” Vide President Campbell's Session Papers, vol. lix.

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present case, the vessel was to load at Virginia, and discharge at Rotterdam. A liberty to call at any port in England. could only be understood a liberty to call at a port in the usual course of sailing between the two extremes of Virginia and Rotterdam—in other words, to call at some port in the English Channel, such as Plymouth, Falmouth, Dover, &c.

Pleaded for the Respondents.—The vessel having been ensured from her loading ports in Virginia to Rotterdam, with leave to call at a port in England, was lost on her voyage from Virginia to Hull, a port in England, The policy covered a voyage from Virginia to any port in England, without any view of proceeding further on arriving at that port, because a voyage may be shortened without vacating the policy, the only effect of shortening a voyage being to diminish the risk; and by liberty to call at a port is implied a power of discharging the whole, or a part of the cargo, at that port. The leave, therefore, in this case, to call at a port in England, gave power to call at any port in England; and such was the meaning of the parties.

After hearing counsel,

Lord Chancellor Thurlow said:—

“ My Lords,

It appears to me very unaccountable, that merchants will persist in using the old form of policies, which were extremely ill worded, and gave occasion to so many law-suits, which might be avoided if clear and fixed expressions were used.—In the present case, I find it impossible to construe ‘from Virginia to Holland (Rotterdam), with liberty to call at a port in England,’ as giving liberty to go entirely out of the course of the voyage, and to call at Hull. If to Hull; why not to Liverpool or Whitehaven? But I need not enter deeply into the subject, because the question before the House was only,—Whether the Court of Session ought to have passed the bill of suspension.? At same time, however, I believe it will not be an easy task to show, that a voyage from Virginia to Rotterdam, with liberty to call at a port in England, which was the risk undertaken by the appellant, is precisely the same thing with a voyage from Virginia to Hull, which was that the vessel intended and actually performed, and if the respondents did not make out that, the appellant certainly was not liable. I therefore move to reverse, and remit to pass the bill.”

It was therefore ordered and adjudged that the interlocutors complained of be reversed, and that the cause

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be remitted back to the Court of Session to pass the bill of suspension.

Counsel: For Appellant, T. Erskine, W. Adam.
For Respondents, Sir John Scott, W. Grant.

1791