No. 59. Dudgeon v. Pembroke, 2 App. Cas. 284, 285.

A time-policy was effected on an iron steamer, the Frances, of 705 tons burden, then lying in the yard of its owner, a shipwright. It had been put under repair, and it was stated in evidence that there had not been any stint placed upon the repairs, and that the marine engineer who superintended the repairs, and the workmen who executed them, believed them to be completely satisfactory. It was expressly found that if the ship was unseaworthy, the assured was ignorant of the fact. The ship went with nothing but a deck cargo of iron machinery from London to Gothenburg, made more water on the voyage than could have been expected from the state of the weather, ceased to do so on getting into harbour, was examined, and its condition on the voyage could not be accounted for; and in a few days afterwards took on board a cargo of oats and 380 tons of iron, and a deck loading of timber; started from Gothenburg, encountered in the open sea very bad weather which put out the fires, ran for the port of Hull, could not make the port, ran ashore, and after some time was broken up and became a total wreck.

Held, that these facts showed a loss by perils insured against, - the perils of the sea,- and that the assured was entitled to recover as for a total loss.

A loss caused immediately by perils of the sea is within the policy, though it might not have occurred but for the concurrent action of some other cause which is not within the policy.

In this case an action had been brought upon a policy of insurance on the iron steamer Frances. The policy was effected [* 285] for the sum of £5800 on ship valued at £8000 and machinery at £4000. The policy stated that the assured "caused themselves to be insured, lost or not lost, at and from

, for and during the space of twelve calendar months, commencing on the 24th of January, 1872, and ending on the 23rd of January, 1873, both days inclusive, in port and at sea, in dock and on way, at all times, in all places, and on all occasions and services, upon any kind of goods and merchandises, and also upon the body, tackle, &c., of and in the good ship or vessel called the Frances (S.) whereof is master for this present voyage or whosoever else shall go, &c., beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship as above, &c., . . . and further until the said ship shall be arrived at as above, until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same be there discharged. . . . Touching the adventures and perils which we, the assurers, are contented to bear, and do take upon us in this present voyage, they are of the seas, &c., and of all other perils, losses, and misfortunes that shall

No. 59. — Dudgeon v. Pembroke, 2 App. Cas. 285, 286.

come to the hurt, &c., of the goods and merchandises and ship, &c., or any part thereof."1

The Frances was an iron screw steamer of 705 tons burden, which had been built at Amsterdam, in 1858, and launched in 1859, for Spanish owners (under the name of the Paris), and was stated to have been originally constructed of good iron. It was proved to have been lying in 1867-1868 in the harbour of Cadiz, unemployed, for about eighteen months. The plaintiff was a shipwright at Millwall, and in 1871 the Paris, then lying at Birkenhead and being offered for sale, he contracted with the Spanish owners to build them a new vessel and to take their vessel in part payment. The vessel was, for the purpose of this arrangement, valued at £4000. It was then, as its boilers were not in good condition, towed round to Millwall. At the time when this trans-action took place the plaintiff was the owner of two steamers plying between London and Gothenburg for goods and passengers, but one of them broke down, and the appellant re- [286] solved to repair the Paris, and run it on the Gothenburg line. Its name was then changed to the Frances. He accordingly put the vessel into a dry-dock at Millwall, where it underwent all the repairs that were deemed to be required; and in the evidence given at the trial it was stated that there was no stint whatever as to the amount of the repairs, and that the workmen, and the marine surveyor and engineer, believed that the ship was made seaworthy. Before the Frances left London, a surveyor from the Board of Trade surveyed the outside of the ship, but for want of time did not survey the inside of it, and therefore it did not obtain a passenger certificate. It sailed for Gothenburg on the 3rd of February, 1872, without one passenger. It had then some machinery on deck, but no other cargo, and was stated to be, consequently, somewhat crank. On its voyage more water was observed in it than could be accounted for by the state of the weather, but it arrived safely at Gothenburg on the 7th of February, and on getting into harbour the leakage ceased. On examination there by carpenters, no cause for making so much water during the voyage could be discovered. On the 11th of February the Frances, having taken on board a cargo of oats and 180 tons

1 The words printed in italics were those referred to in the Exchequer Chamber by Lord COLERIDGE, as showing that

the policy bore the character of a voyagepolicy.

No. 59. — Dudgeon v. Pembroke, 2 App. Cas. 286, 287.

of iron, together with a deck cargo of deals, left Gothenburg for London. On the morning of the 12th of February, the ship being then in the open sea, the wind became very strong with a heavy rolling sea, and the ship laboured much, and a sail was put over the stokehole to prevent the sea from getting into the fires. The precaution did not answer; and in sixteen hours the fires were put out. Some of the wood forming the deck cargo was used for relighting the fires, and some was thrown or was washed overboard. After about twelve hours pumping, the pumps got choked with the oats, and all hands were employed in baling the ship. Evidence was given, which did not appear to be denied, to show that the screw tunnel was not in proper order, and that if it had been, the pumps could not have got choked as they did. On the night of the 14th of February endeavours were made to get the ship into Hull, but being waterlogged it did not readily answer the helm, and went ashore under Didlington Heights, upon the coast of Yorkshire, and finally went to pieces.

This action was then brought. The declaration con[*287] tained a count on the policy as for a total loss and the common money counts. To the first count the defendant pleaded 1. Denial of the insurance. 2. Denial of the plaintiff's interest. 3. Denial of the loss by perils insured against. 4. Misrepresentation. 5. Concealment. 6. That after the making of the policy the plaintiff, well knowing that the ship was unseaworthy, and without any justifiable cause, sent it to sea in such unseaworthy condition, and that the loss was occasioned thereby. 7. That the voyage was illegal by reason of the ship having sailed with passengers without a passengers' certificate, and that the policy was effected to cover the illegal voyage. As to the money counts, never indebted. Issue on all the pleas.

The cause was tried before Mr. Justice BLACKBURN and a special jury at the London sittings after Trinity Term, 1873, when the learned Judge left seven questions to the jury, which, and the answers, were the following: 1. Was the broker's representation at the time of making the insurance correct? Yes. 2. Was it represented that the vessel was to carry passengers, and therefore that it had been surveyed by the Board of Trade? - No. 3. Was there concealment of any matter materially affecting the insurance? - No. 4. Was the fact that the ship had not been surveyed for carrying passengers material? -No. 5. Was the

vessel seaworthy when it started? -The jurymen could not agree. 6. If not, was that known to the plaintiff? - No. 7. Was that unseaworthiness the cause of the loss? - The jurymen could not agree. The learned Judge directed the verdict to be entered for the plaintiff, with leave to move. A rule was obtained to set aside the verdict on the sixth plea, on the ground that the findings of the jury did not warrant the entry of the verdict, and that as to the third plea there was no finding to warrant the entry of such verdict. The rule also called on the plaintiff to show cause why a verdict should not be entered for the defendant, or a new trial be granted, on the ground that the findings were against the weight of evidence, and were inconsistent and incomplete. On the 6th of July, 1874, the Court of Queen's Bench gave judgment discharging the rule. (L. R. 9 Q. B. 581.) This decision was, on appeal, reversed in the Exchequer Chamber, the majority of the Judges there being of opin- [* 288] ion that the answers given upon the third and sixth issues

did not properly dispose of the case, and that therefore there ought to be a new trial. (1 Q. B. D. 96.) This appeal was then brought.

Mr. Milward, Q. C., and Mr. A. L. Smith, for the appellant:When the principle of law that ought to govern this case is properly considered, there can be no doubt that all the issues were disposed of, and that the verdict was rightly entered for the plaintiff.

There is no warranty of seaworthiness in a time-policy on ship. In a voyage-policy it is otherwise. This was a time-policy, and certain expressions used in it, though relied on in the judgment of Lord COLERIDGE in the Exchequer Chamber as altering its character, had no such effect.

The question has really been decided by the case of Thompson v. Hopper, 6 El. & Bl. 172, which followed the decision of this House in Gibson v. Small, 4 H. L. C. 353 (p. 86, ante). Fawcus v. Sarsfield, 6 El. & Bl. 192, and Jenkins v. Heycock, 8 Moo. P. C. 351, proceeded on the same principle.

By these authorities the law may be considered as definitely settled. The only difficulty that could exist arose from the applicability to the particular findings here of the principle involved in those decisions. The jurors could not agree whether at the time of effecting the policy the ship was or was not seaworthy,

No. 59. Dudgeon v. Pembroke, 2 App. Cas. 288, 289.

nor could they agree whether unseaworthiness was the cause of the loss. But this was a time-policy, and it became immaterial to consider these questions, for a time-policy involved no warranty of seaworthiness. Going out of the policy, and referring only to the general question whether the plaintiff had sent the ship to sea knowing that it was not seaworthy, so that he might be said to have occasioned his own loss, the jurymen answered distinctly that if the vessel was unseaworthy, which they could not agree to find, at all events he did not know of its being so. The material facts were therefore found in favour of the plaintiff, and consequently the verdict was properly entered in his

favour.

[* 289] * Even if, independently of the rule of law as to a timepolicy, the owner of a ship was bound to send it to sea in a state fit to encounter the ordinary dangers of a voyage, it was clear that he had done so here. The evidence showed that proper repairs had been ordered and executed, and the vessel made the voyage to Gothenburg in safety, and there could be no doubt that it was stress of weather and the perils of the sea that made it run ashore on its return voyage.

The cases relied on by the other side in the Court below (1 Q. B. D. 96), where the obligation of sending a ship to sea in a seaworthy condition was insisted on, were those of voyage-policies, which had nothing to do with the present case. Douglas v. Scougall, 4 Dow, 269 (16 R. R. 69), was the case of a voyagepolicy, and the observations there made by Lord ELDON (4 Dow, at p. 276) were strictly confined to the case which he was then considering. The facts here showed that the loss was one which arose immediately from the perils of the sea, and would have been sufficient to fix liability on the defendant even if this had been a voyage-policy. Walker v. Maitland, 5 B. & Ald. 171 (24 R. R. 320); Ionides v. Universal Marine Assurance, 14 C. B. (N. S.) 259, 32 L. J. C. P. 170; Bondrett v. Hentigg, Holt N. P. 149 (17 R. R. 625); Montoya v. The London Assurance Company, 6 Ex. 451.

Mr. C. P. Butt, Q. C. (Mr. Cohen, Q. C., was with him), for the respondent:

Whatever difficulty exists in this case as to the entry of the verdict, has arisen from the answer of the jurors to the latter part of the sixth question. But that really was immaterial.