Case law Flashcards
Issues risen regarding quantum of loss. In addition to disputing CTL, uw’s contended there be no liability for tugs from point the vessel redelivered by LOF on basis original peril (piracy) ceased to operate. Court held vessel was a CTL and original peril continued to operate after redlivery by salvors and that ongoing expenses such as tugs were incurred for benefit of assured and uw’s, therefore sue and labour should be recoverable until proceedings were commenced on Feb 2012 but not until vessel delivered to scrap proceedings (March 2012)
Brillante Virtuoso
Bunga Melati Dua was hijacked by pirates. Ransom paid and ship returned in 6 weeks. Assured attempted to claim cargo CTL/ATL on ground they were irretrievable deprived of cargo or CTL as ATL unavoidable. Argued prospects of recovering cargo shouldnt be taken into account as ransom contrary to english public policy. Held ransom not contrary, not illegal and assured is not irretrievable deprived of property if it is legally and physically possible to recover it (even if only can be achieved by disproportionate effort and expenses)
Masefield v Amlin 2011
Motor yacht encountered adverse weather, found hull damaged due to weather and due to poor design of internal stiffeners. Held it was not necessariy for weather to be exceptionally bad to give rise for a claim arising from perils of sea, if actions of sea immediate cause of loss, a claim shall arise even if conditions can be anticipated. Held that there were 2 prox causes; one is included (weather) and one is not expressly excluded by policy (unseaworthiness due to inadequate stiffeners), claim will succeed.
Miss Jay Jay (1987)
Vessel insured under time policy, when shell plating in engine room opened, flooding and sinking vessel. Owners advanced theories thinking possibly submarine contact. Insurers rejected this stating it was ordinary wear and tear. HOL reviewed expert evidence, stating it was inconclusive and rejected the claim on basis owners had failed to discharge the burden of proof which lay upon them
The Popi M (1985)
Assured collided with canadian naval vessel and became a TL, for which uw’s paid £72,000. Assured obtained recovery from Canadian gov of £127,000 de to devaluation of sterling. Held that insurers right of subrogation only entitled them to reciver up to the amount that had paid
Yorskhire Insurance Co v Nisbet (1961)
Cargo of filtration materials shipped in bags on all risk terms. On arrival, bags split. Claim for cost of rebagging rejected on basis bags had burst because of insuffient strength and this weakness was an inherent vice for which insurers not liable.
Berk v Style (1955)
Wooden barge insured against TL including damge by collision, stranding,sinking. Barge had spent 50 years carrying coal and sank on calm night. Loss due to ordinary wear and tear and therefore excluded by s55. Loss due to the general debility of the barge rather than any fortuity.
Wadsworth Lighterage v Sea insurance (1929)
Vessel scuttled by master and crew with connivance of owner. Claim put forward by innocent mortgagee but it was held he was unable to recover because scuttling of the vessel with owners connivance is not a perils of the seas. No fortutity involved in deliberate act to sink a vessel.
Samuel P and Co v Dumas (1923)
Wool insured on all risk terms, Upon arrival noticed water damage to the wool. Insurers rejected claim on basis assured couldnt prove when / how damage had occurred. Was held assured claim should succeed as on all risk terms, assured isnt obliged to determine exact nature of loss, only that fortuity occurred (an no exclusions apply)
British and Foreign v Gaunt (1921)
Vessel insured under time policy sent to seas in unseaworthy conditions on 2 accounts; insufficient crew, unfitness of hull. Assured privy to first but not second. Vessel lost due to unfitness of hull. Insured able to recover because exclusion under MIA39(5) only occurs if loss was attributable to the particular unseaworthiness to which the assured was privy
Thomas v Tyne and Weir (1917)
Vessel hit by torpedo but crew able to bring her into port. Gale caused vessel to range heavily against quay and was moved to outer harbour. Bad weather and touching bottom at low tide, vessel totally lost. Owner claims loss by perils of the seas, HOL agreed with insurers total loss was result of war perils, the vessel still in grip of the casualty that originated with torpedo attack. Prox cause is not necessarily prox in time but prox in efficiency
The Ikaria (1918)
Tug insured against collision and contact damage but not in respect of perils of the seas. Tug made contact with floating object, damaging condenser, water ingress. Was towed but temp repairs failed and became beached and TL. Insurers argued only liable for initial contact damage. Held ininitial contact was prox cause of loss, the tug being continuously in danger from time condenser broken, and assureds claim should succeed.
Reischer v Borwick (1894)
Time policy on steamship. Sailed ballast condition making some water. Loaded cargo, encountered heavy weather and became water logged, grounded and total loss. Vessel was unseaworthy but assured not privy. Held assured entitled to recover loss by perils of seas because causa proxima non remota spectator is the maxim which these policies are construed, any loss immediatly caused by perils of the seas is within the policy, even though it may not have happened but for the concurrenct action of some other peril
Dudgeon v Pembroke (1877)
Vessel insured on voyage policy, after leaving the boiler which was defective prior voyage broke down requiring vessel to shelter and repair. After repairs, vessel sailed but was lost during heavy weather. Insurers declined claim since vessel originally sailed in unseaworthy condition due to defective boiler, breaching implied warranty of seaworthiness in a voyage policy, PC agreed even though breach had been put right at time of loss
Quebec Marine Insurance v Commercial Maritime (1870)
Contract of affreightment case in which b/l included exceptions clause in respect of dangers and accidents of the seas. Rats had gnawed into lead pipe allowing seawater to enter and damage cargo. It was held exceptions clause would apply because the action of the rats was only the remote cause, the immediate cause being the ingress of seawater.
Hamilton v Pandorf (1887)
