United Kingdom House of Lords Decisions

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Cite as: [1821] UKHL 1_Shaw_22

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SCOTTISH_HoL_JURY_COURT

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(1821) 1 Shaw 22

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

2 d Division.

No. 7.

Dennistoun, Buchanan, and Company, Appellants.—Sol.-Gen. Wedderburn—Romilly—Cranstoun

v.

D. Lillie and Others, Respondents.—Wetherell—Denman

April 5. 1821.

Lord Pitmilly.

Subject_Insurance. —

Held (affirming the judgment of the Court of Session,) that although it was innocently represented to insurers that a vessel was to sail from New Providence on the 1st of May, and a policy was thereupon executed; yet, as she actually sailed on the 23d of April preceding, and was captured on the 11th of May, this was a material misrepresentation to the effect of liberating the insurers.

On the 19th of March 1814, William Duff and Company, merchants at New Providence, addressed a letter to Dennistoun, Buchanan, and Company, merchants in Glasgow, in which they stated, that “at a prize sale of a South Sea whaler, and her cargo of oil, that took place here yesterday, we purchased on your account about 40,000 gallons of spermaceti oil, at 3 s. 9 ½d. sterling per gallon; 14,000 gallons of which we intend to ship upon that remarkable fast sailing schooner Brilliant of 157 tons burden, mounting six nine-pounders, to sail, with or without convoy, about the 1st of May, and on the value of which shipment you will please to make insurance;” and they ordered insurance on the Brilliant herself to Greenock for £1400. In another letter of the 24th, they mentioned that the Brilliant would be cleared out as bound to Greenock and a port on the continent. Copies of these letters (the originals of which had been transmitted, but not received) were inclosed in one of the 2d of April, in which it was stated, that “the Brilliant will sail on the 1st of May, a running vessel, and in which the writer of this (one of the partners) will take his passage.” These letters were received by Dennistoun, Buchanan, and Company on the 17th of June thereafter, and on the following day they effected a policy of insurance with Lillie and others “from Nassau to Clyde, with leave to call at all ports and places whatsoever for convoy, or for any other purpose whatever, without being deemed a deviation,

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and with or without letters of marque, leave to chase, capture, man, and convoy, or send into port or ports any vessel or vessels.” The insurance was done at the rate of six guineas per cent., to return three pounds per cent. “for convoy for the voyage, or two pounds per cent. for partial convoy and arrival.” At that time this country was engaged in war with America; and, on the 23d of April, the Brilliant sailed under convoy of His Majesty's ship Martin for Halifax. She was captured on the 11th of May by an American privateer, and carried as a prize into Boston. Dennistoun, Buchanan, and Company having demanded implement of the policy from Lillie and others, and this being refused, they brought an action against them before the Court of Admiralty. In defence it was pleaded, that the nature and extent of the risk had been misrepresented; that it appeared from the letter of the 2d of April that the Brilliant was to sail on the 1st of May, whereas she had sailed on the 23d of April, which fact was material, because the vessel had thus been 56 days at sea instead of 49, as was supposed when the contract was entered into, and so would have been considered a missing ship; and that in this question it was unimportant that the misrepresentation was unintentional. To this it was answered, That there was no warranty as to the period when the vessel was to sail; that the letters had been exhibited, so that the insurers were put in possession of all the information which Dennistoun, Buchanan, and Company had obtained; and that these letters represented nothing more than that it was the intention of Duff and Company to dispatch the vessel on the 1st of May, without, however, fixing themselves down to that day, or preventing themselves from taking advantage of a convoy in the mean while. The Judge admiral, after alluding to the terms of the letters, found “it admitted that these letters were communicated to the defenders, whereby they saw that the vessel was positively intended to remain in New Providence, and not to sail therefrom till the 1st of May, and under this impression subscribed the policy in question; that the Brilliant sailed on the 23d of April from New Providence, and, for any thing known, may have been captured before the 1st of May, when she was held forth to the defenders as remaining in the harbour; that although the representation made by the pursuers was absolutely innocent on their part, the fact stated by them to the defenders was not verified, and a material change was thereby made in the risk undertaken by the latter;” and therefore assoilzied Lillie and others, and found them entitled to expenses. To this interlocutor he adhered, in respect “that the risk which the underwriters undertook being confessedly that

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on a vessel to sail on the 1st of May, was perfectly different from one on a vessel which sailed on the 23d of April, inasmuch as the defenders undertook a risk on a vessel understood to be in the harbour and safe on the 1st of May, when, in fact, she had been eight days at sea.” He accompanied this interlocutor with a note, in which he observed, that “the petitioners (D. B. and Co.) do not seem to dispute, that if the vessel had been taken before the 1st of May, they would have had no argument. They, however, state that the vessel was not captured till the 11th of May. This, in real reasoning, makes no difference, since it is a thousand chances to one, that if she had not sailed till the 1st of May, she would not have fallen in with the vessel which took her. The case of a vessel sailing the day before she is represented to sail, is quite different from that of a ship being detained by unavoidable accidents beyond that day. In fact, it is an insurance on a vessel in jeopardy, when she is represented to be comparatively safe.” Dennistoun, Buchanan, and Company having brought these judgments under review of the Court of Session by reduction, Lord Pitmilly repelled the reasons, and assoilzied Lillie and others; and to this interlocutor the Court adhered on the 21st of May 1816, and 22d May 1817. ^*

Dennistoun, Buchanan, and Company then appealed; but the House of Lords “Ordered and adjudged that the appeal be dismissed, and the interlocutors complained of affirmed.”

Counsel: Appellants' Authorities.—Park, 321. 322; Marshall, 312; Park, 203, 205.

Solicitors: J. Campbell,— C. Berry,—Solicitors.

( Ap. Ca. No. 16.)

_________________ Footnote _________________

* Not reported.

1821