Category: Insurance

Glengate-KG Properties Ltd v Norwich Union Fire Insurance Society Ltd and Others: CA 12 Jan 1996

NU the insurer of a consequential loss insurance policy, appealed against the decision, on a claim brought by G, the owners of a property under redevelopment, which had suffered a fire as to G’s resultant loss of rental income from the property. The fire destroyed architects’ drawings which were not insured and caused a substantial delay in the development. The issue was whether a proviso contained in G’s policy, that at the time of the damage the claimant must have ‘an insurance covering the interest of the insured in the property at the premises against such damage’ could be construed as giving G an insurable interest in the Architects drawings even though they were not the owners.
Held: The appeal was dismissed. The word ‘interest’ contained in the proviso should be construed in context, depending on the insured’s relation to the damaged property. An insured could recover if he had rights in existence at the time of the loss which were affected by the damage e.g. profits from a forward sale. However, the Architects’ drawings were not property in which he had a personal interest at the time of the fire. They were the property of the Architects, and G were under no obligation to insure themselves against their loss.
Such loses through delay were not recoverable.
Auld LJ said: ‘the nature of the insurable interest in each case must depend on the type of cover in issue’.
Auld LJ, Neill LJ
Ind Summary 22-Jan-1996, Times 12-Jan-1996, [1996] 1 Lloyds Rep 614, [1996] 2 All ER 487
England and Wales
Citing:
Approved – Sharp v Sphere Drake Insurance plc (The Moonacre) 1992
S, a retired businessman, had bought a vessel and insured it in his name, but registered it in the name of company, R. In the winter, the boat was laid up, but occupied by a workman who maintained it and kept it secure. The boat was destroyed by a . .
Cited – Lucena v Craufurd HL 1806
Before the declaration of war, against the United Provinces, His Majesty’s ships took possession of several ships belonging to Dutch East India men, and took them to St Helena. The Commissioners then insured the ships for their journey from St . .

Cited by:
Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .

These lists may be incomplete.
Updated: 11 July 2021; Ref: scu.80870

Lucena v Craufurd: CEC 1802

Enemy ships which had been captured were insured for their return to England. A claim arose. The insurance provider said that the claim failed under the 1745 Act as a wager since the claimant had no insurable interest in the ships.
Held: 184480 said: ‘It would be a strange thing if freight could not be the subject of protection by an instrument which had its origin from commerce and was introduced for the very purpose of giving security to mercantile transactions. It is a solid substantial interest ascertained by contract and arising from labour and capital employed for the purpose of commerce.’ and ‘The insurance of profits ascertained by positive contract may be equally just and reasonable, and is hardly to be distinguished in principle from the case of freight . . A mere speculation on profit is not insurable.’
Chambre J
(1802) 3 Bos and P 75, [1802] EngR 21, (1802) 3 Bos and Pul 75, (1802) 127 ER 42
Commonlii
Marine Insurance Act 1745
England and Wales
Cited by:
Appeal from – Lucena v Craufurd HL 1806
Before the declaration of war, against the United Provinces, His Majesty’s ships took possession of several ships belonging to Dutch East India men, and took them to St Helena. The Commissioners then insured the ships for their journey from St . .
See Also – Lucena v Craufurd HL 29-Jun-1808
Commissioners were authorized by a commission granted in pursuance of a statute, to take into their possession ships and goods belonging to subjects of the United Provinces, which had been or might be detained in or brought into the ports of this . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.238200

Lucena v Craufurd: HL 1806

Before the declaration of war, against the United Provinces, His Majesty’s ships took possession of several ships belonging to Dutch East India men, and took them to St Helena. The Commissioners then insured the ships for their journey from St Helena to London. War followed shortly. The ships were declared as prizes to his Majesty, having ‘belonged, when taken, to subjects of the United Provinces, since become enemies.’ A loss occurred and the Commissioners sought to claim under the policies, saying the interest was in the King.
Held: An insurance taken out on the profits of a ship or other goods which was in its true nature a wager was merely an attempt to evade the 1745 Act. Even though the contract did not come within the word of the Act, it came within its spirit, and was avoided by the Act.
Lord Eldon rejected the argument based on moral certainty: ‘In order to distinguish that intermediate thing between a strict right, or a right derived under a contract, and a mere expectation or hope, which has been termed an insurable interest, it has been said in many cases to be that which amounts to a moral certainty. I have in vain endeavoured however to find a fit definition of that which is between a certainty and an expectation; nor am I able to point out what is an interest unless it be a right in the property, or a right derivable out of some contract about the property, which in either case may be lost upon some contingency affecting the possession or enjoyment of the party.’ and ‘That expectation [of the insured in the case], though founded upon the highest probability, was not an interest, and it was equally not interest, whatever might have been the chances in favour of the expectation . . If moral certainty be a ground of insurable interest, there are hundreds, perhaps thousands, who would be entitled to insure. First the dock company, then the dock master, then the warehouse-keeper, then the porter, and then every other person who to a moral certainty would have anything to do with the property, and of course get something by it.’
Lawrence J (advising their lordships) ‘A man is interested in a thing to whom advantage may arise or prejudice happen from the circumstances which may attend it; and whom it imports, that its condition as to safety or other quality should continue; interest does not necessarily imply a right to the whole or part of the thing, nor necessarily and exclusively that which may be the subject of privation, but the having some relation to, or concerning the subject of the insurance; which relation or concern, by the happening of the perils insured against. may be so affected as to produce a damage, detriment or prejudice to the person insuring. And where a man is so circumstanced with respect to matters exposed to certain risks or dangers, as to have a moral certainty of advantage or benefit, but for those risks or dangers he may be said to be interested in the safety of the thing. To be interested in the preservation of a thing, is to be so circumstanced with respect to it as to have benefit from its existence, prejudice from its destruction. The property of a thing and the interest devisable from it may be very different; of the first the price is generally the measure, but by interest in a thing every benefit and advantage arising out of or depending on such thing may be considered as being comprehended.’
Lawrence J, Lord Eldon
(1806) 2 Bos and Pul MR 269, [1806] EngR 12, (1806) 2 Bos and Pul 269, (1806) 127 ER 630
Commonlii
Marine Insurance Act 1745
England and Wales
Citing:
Appeal from – Lucena v Craufurd CEC 1802
Enemy ships which had been captured were insured for their return to England. A claim arose. The insurance provider said that the claim failed under the 1745 Act as a wager since the claimant had no insurable interest in the ships.
Held: . .
Cited – L Cras v Hughes 1782
Two Spanish register ships had been captured by a squadron of ships of war assisted by men at arms. . .

Cited by:
Adopted – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .
Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
See Also – Lucena v Craufurd HL 29-Jun-1808
Commissioners were authorized by a commission granted in pursuance of a statute, to take into their possession ships and goods belonging to subjects of the United Provinces, which had been or might be detained in or brought into the ports of this . .
Cited – Glengate-KG Properties Ltd v Norwich Union Fire Insurance Society Ltd and Others CA 12-Jan-1996
NU the insurer of a consequential loss insurance policy, appealed against the decision, on a claim brought by G, the owners of a property under redevelopment, which had suffered a fire as to G’s resultant loss of rental income from the property. The . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.184480

Bank of America National Trust and Savings Association v Chrismas (‘The Kyriaki’): QBD 26 Aug 1992

When a party seeks to add a new defendant by the amendment of a writ, that amended writ must be served within the applicable limitation period. For limitation purposes the assured’s cause of action arose at the date of the CTL casualty, that a notice of abandonment was not an essential ingredient of that cause of action but rather a notification of an election between two alternative quantums of damage.
Hirst J
[1993] 1 Lloyd’s Rep 137, Times 26-Aug-1992
England and Wales
Cited by:
Cited – Kastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.251754

Nigel Upchurch Associates v The Aldridge Estates Investment Co Ltd: 1993

Miss Barbara Dohmann QC
[1993] 1 Lloyds Rep 535
England and Wales
Cited by:
Not good law – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .

These lists may be incomplete.
Updated: 04 July 2021; Ref: scu.198403

FNCB Ltd v Barnet Devanney and Co Ltd: CA 1 Jul 1999

An insurance broker was asked to provide insurance to protect a mortgagee but did not arrange mortgage protection cover.
Held: He was in breach of his contract even though the law relating to such insurance was unsure. He was not entitled to try to resolve such issues, but was instead required to act in accordance with his contractual obligations.
Gazette 14-Jul-1999, Times 28-Sep-1999, [1999] EWCA Civ 1729
England and Wales
Cited by:
Cited – The Seashell of Lisson Grove Ltd and Others v Aviva Insurance Ltd and Others ComC 1-Nov-2011
The claimant’s fish restaurant had burned down. The court was asked to make a preliminary determination of issues on construction on insurance policy. The insured sought to evade what the insurer said were breaches of warranty, misrepresentations . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.80618

State of Netherlands (Represented By Minister of Defence) v John Ludbrooke Youell and Peter Nathan Chrismas and Other Set Out In Schedule To Amended Writ of Summons: CA 13 Nov 1997

[1997] EWCA Civ 2715
Bailii
Citing:
Appeal from – State of the Netherlands v John Richard Ludbrooke Youell and Another ComC 20-Mar-1997
ComC Marine insurance – joint and composite insurance – distinction – relevance of subrogation – pervasive interests of co-assured – no bar to composite status – voluntary payment – relevance of wilful misconduct . .

Cited by:
Appealed to – State of the Netherlands v John Richard Ludbrooke Youell and Another ComC 20-Mar-1997
ComC Marine insurance – joint and composite insurance – distinction – relevance of subrogation – pervasive interests of co-assured – no bar to composite status – voluntary payment – relevance of wilful misconduct . .

These lists may be incomplete.
Updated: 30 December 2020; Ref: scu.143114

North British and Mercantile Insurance Company v London Liverpool and Globe Insurance Company: 1877

In a dispute between insurers as to who should bear the loss, it was held that the loss should be borne by the wharfinger’s insurer because ‘the primary liability’ was that of the wharfinger. The customary strict responsibility of a wharfinger for the safe custody of goods entrusted to him by customers was held to be primary and his liability for the loss of the goods by fire was not discharged by a payment under the customer’s insurance policy.
References: (1877) 5 Ch D 569
Judges: Baggallay JA
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
    Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
    (, Times 13-Feb-02, , [2002] UKHL 4, [2002] 1 LLR 553, [2002] Lloyds Rep IR 261, [2002] 1 All ER (Comm) 321, 2002 SLT 278, [2002] CLC 741, 2002 SC (HL) 117, [2002] BLR 139, 2002 SCLR 346, 2002 GWD 6-178)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191162

Jureidini v National British and Irish Millers Insurance Company Limited: HL 1915

An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an arbitration clause in the policy. The arbitration clause applied only ‘if any difference arises as to the amount of any loss or damage’ and provided that ‘it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage if disputed shall be first obtained’.
Held: the insurance company was not entitled to rely on the arbitration clause. The arbitration clause applied only to differences concerning the amount of loss and, therefore, not to a claim that was repudiated by the insurer altogether. (Haldane obiter) ‘there has been in the proceedings throughout a repudiation on the part of the respondents of their liability based upon charges of fraud and arson, the effect of which, if they are right, is that all benefit under the policy is forfeited. But one of the benefits is the right to go to arbitration under this contract, and to establish your claim in a way which may, to some people, seem preferable to proceeding in the Courts; and accordingly that is one of the things which the appellants have, according to the respondents, forfeited with every other benefit under the contract. Now my Lords, speaking for myself, when there is a repudiation which goes to the substance of the whole contract I do not see how the person setting up that repudiation can be entitled to insist on a subordinate term of the contract still being enforced.’
References: [1915] AC 499
Judges: Viscount Haldane, LC, Lord Dunedin, Lord Atkinson, Lord Parmoor, Lord Parker of Waddington
Jurisdiction: England and Wales
This case is cited by:

  • Restricted – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
    PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
    (, [2004] UKPC 2, Times 28-Jan-04, , , , [2004] 2 All ER 358)
  • Dicta distinguished – Woodall v Pearl Assurance Co Ltd CA 1919
    . .
    ([1919] 1 KB 593)
  • Explained – Sanderson and Son v Amour and Co Ltd HL 1922
    ‘I should say a single word as to the case of Jureidini. That case has in my view no application, for the simple reason that the clause of reference there was not a reference of all disputes, but only a reference as to the evaluation of loss. In . .
    (1922 SC (HL) 117)
  • Explained – Heyman v Darwins Limited HL 1942
    An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
    ([1942] AC 356, [1942] 1 All ER 337)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193381

Heyman v Darwins Limited: HL 1942

An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of submission and the fact that no dispute had arisen on the only point submitted to arbitration.’
If one party to a contract repudiates it and that repudiation is accepted, then ‘By that acceptance he is discharged from further performance and may bring an action for damages, but the contract itself is not rescinded.’ The primary obligations under the contract may come to an end, but secondary obligations then arise, among them being the obligation to compensate the innocent party. The original rights may not then be enforced. But a consequential right arises in the innocent party to obtain a remedy from the party who repudiated the contract for his failure in performance.
Lord Porter said that in differentiating between disputes ‘arising under’ and ‘arising out of’ the agreement, the former should be given a narrower meaning.
As to the right to rescind, he said: ‘The three sets of circumstances giving rise to a discharge of contract are tabulated by Anson as: (1) renunciation by a party of his liabilities under it; (2) impossibility created by his own act; and (3) total or partial failure of performance. In the case of the first two, the renunciation may occur or impossibility be created either before or at the time for performance. In the case of the third, it can occur only at the time or during the course of performance.’
References: [1942] AC 356, [1942] 1 All ER 337
Judges: Viscount Simon LC, Lord Wright, Lord Macmillan, Lord Russell of Killowen, Lord Porter
Jurisdiction: England and Wales
This case cites:

  • Explained – Jureidini v National British and Irish Millers Insurance Company Limited HL 1915
    An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an . .
    ([1915] AC 499)

This case is cited by:

  • Cited – Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd; The New York Star PC 1980
    A question arose, in the context of dispute between a consignee of goods and stevedores, whether the latter could rely on a time bar. It was argued that because of the fundamental nature of the breach, the stevedore had deprived itself of the . .
    ([1981] 1 WLR 138, [1980] 3 All ER 257)
  • Cited – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
    PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
    (, [2004] UKPC 2, Times 28-Jan-04, , , , [2004] 2 All ER 358)
  • Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
    A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
    (Times 15-Aug-00, , Gazette 05-Oct-00, , [2000] UKHL 43, [2000] 4 All ER 97, [2000] 3 WLR 946, [2001] 1 AC 518)
  • Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
    The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
    (, , [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
  • Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
    The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
    (, [2007] EWCA Civ 20, Times 29-Jan-07, [2007] Bus LR 686, [2007] 1 CLC 144, [2007] 2 Lloyd’s Rep 267, [2007] ArbLR 22, [2007] 1 All ER (Comm) 891)
  • Cited – Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd 1993
    The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide . .
    ([1993] 1 Lloyds Rep 81)
  • Cited – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
    The owners of a ship sought to rescind charters saying that they had been procured by bribery.
    Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
    ([2007] ArbLR 24, , [2007] UKHL 40, [2008] 1 Lloyd’s Rep 254, [2007] 4 All ER 951, [2007] Bus LR 1719, [2007] 114 Con LR 69, [2007] 2 CLC 553, [2007] 2 All ER (Comm) 1053, [2007] CILL 2528)
  • Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
    The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
    Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
    (, [2009] EWHC 2974 (Comm))

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193384

Larrinaga Steamship Co Ltd v The King: HL 1944

The vessel, discharging at St. Nazaire, was ordered by charterers to return to Cardiff. Despite severely deteriorating weather conditions a Sea Transport Officer instructed the vessel to sail on completion of discharge to Quiberon Bay to join a convoy bound for the Bristol Channel. The master protested but complied. The vessel grounded and suffered damage. The owners claimed against the Crown as charterers, contending that the damage had resulted from the charterers’ order to return to Cardiff.
Held: A ship owner’s underwriters would be entitled to be subrogated to his claim for indemnity against a charterer in respect of losses caused by the master’s compliance with the charterer’s orders as to the employment of the ship, under a standard term of a charterparty.
Lord Wright said: ‘The view of the judge was that what he described as the ‘sailing orders to Quiberon Bay to be obeyed forthwith . .’ were orders as to employment within cl. 9. With the greatest respect, I cannot agree with that view. These sailing orders which the judge found were given were, in my opinion, merely dealing with matters of navigation, in regard to carrying out the orders to proceed to Cardiff’.
Lord Porter said: ‘Three answers to this argument have been made by the respondent. (1) That though an order specifying the voyage to be performed is an order as to employment, yet an order as to the time of sailing is not. That order, it is contended, is one as to navigation, or, at any rate, not as to employment. My Lords, this distinction seems to me to be justified: an order to sail from port A to port B is in common parlance an order as to employment, but an order that a ship shall sail at a particular time is not an order as to employment because its object is not to direct how the ship shall be employed, but how she shall act in the course of that employment. If the word were held to include every order which affected not the employment itself but any incident arising in the course of it almost every other liability undertaken by the charterer would be otiose, since the owners would be indemnified against almost all losses which the ship would incur in prosecuting her voyages.’
and ‘(2) The second answer of the respondents was that even if it were conceded that orders to sail in a storm were orders in respect of which an indemnity is due, they must still be orders of the charterers as charterers and such as under this charterparty they are entitled to give. The mere instruction to sail may be such an order, but such an instruction leaves it to the discretion of the master who is responsible for the safety of his ship to choose the time and opportunity for starting on his voyage. I know of no right on the part of a charterer to insist that the safety of the ship should be endangered by sailing at a time when seamanship requires her to stay in port.’
Lord Findlay, LC suggested that, although the parties in Krell v Henry may have contracted in the expectation that the procession would take place, it was difficult to see why the happening of the procession was the basis of the contract.
References: [1944] KB 124, [1945] AC 246
Judges: Lord Findlay LC, Mackinnon LJ and Lords Wright and Porter
Jurisdiction: England and Wales
This case cites:

  • Criticised – Krell v Henry CA 1903
    A contract to rent rooms for two days and from which the coronation processions of King Edward VII were to be viewed was frustrated when the processions were cancelled on the days the rooms were taken for because the contract was ‘a licence to use . .
    ([1903] 2 KB 740, [1900-3] All ER 20)

This case is cited by:

  • Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
    Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
    (, Times 13-Feb-02, , [2002] UKHL 4, [2002] 1 LLR 553, [2002] Lloyds Rep IR 261, [2002] 1 All ER (Comm) 321, 2002 SLT 278, [2002] CLC 741, 2002 SC (HL) 117, [2002] BLR 139, 2002 SCLR 346, 2002 GWD 6-178)
  • Cited – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
    The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
    (, [2012] UKSC 17, [2012] 2 WLR 976, , UKSC 2010/0157, , )

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191167

Drake Insurance Plc v Provident Insurance Plc: ComC 3 Feb 2003

A driver caused an accident, and the claimant insurance company paid out. It now sought a contribution from the defendant, who had also insured the driver, but had denied liability. The driver was a named additional driver under the second policy, but the principal insured had failed to disclose an old speeding conviction.
Held: There had been non-disclosure, but if an accident had been correctly disclosed as no-fault rather than fault, the premium would not have changed. The right of an insurer to avoid a contract for non-disclosure is akin to the right of rescission. Once the decision is communicated, the avoidance has immediate effect. If this was done in good faith, a later revision of the basis of the proposal does not revive the contract, and nor did the continuing to collect pemiums and amendment of the insurance contract.
References: [2003] EWHC 109 (Comm)
Links: Bailii
Jurisdiction: England and Wales
This case cites:

  • Cited – Pan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994 (Times 27-Jul-94, Independent 04-Aug-94, Gazette 07-Oct-94, [1995] 1 AC 501, [1994] 3 All ER 581, [1994] 2 Lloyds Rep 427, [1994] 3 WLR 677)
    The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
    Held: ‘material circumstance’ which . .
  • Cited – Abraham Steamship v Westville HL 1923 ([1923] AC 773)
    . .
  • Cited – Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001 (Times 23-Jan-01, , , [2001] 1 All ER 743, [2001] 2 WLR 170, [2001] UKHL 1, [2003] 1 AC 469)
    The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .

These lists may be incomplete.
Last Update: 24 September 2020; Ref: scu.178956

Odyssey Re (London) Ltd (Formerly Sphere Drake Insurance Plc) and Another v OIC Run-Off Ltd (Formerly Orion Insurance Co Plc): Admn 15 Feb 2000

References: [2000] EWHC Admin 291
Jurisdiction: England and Wales
This case cites:

  • See Also – Sphere Drake Insurance Plc and Another v Orion Insurance Company Plc ComC 11-Feb-1999 (, [1999] EWHC 286 (Comm))
    ComC Multi-party run-off agreement made in 1975 to govern parties’ contributions towards run-off based on estimates of likely claims- asbestos-related claims led to final liabilities being vastly greater than . .
  • Cited – Seabord Offshore Ltd v Secretary of State for Transport (The Safe Carrier) HL 25-Mar-1994 (Independent 24-Mar-94, Gazette 11-May-94, Times 25-Mar-94, [1994] 2 All ER 99, [1994] 1 WLR 541)
    The House was asked whether a ship manager was legally responsible for the acts of the ship’s chief engineer under s31(1) of the Merchant Shipping Act 1988, which imposed a duty on the manager to take all reasonable steps to secure that the ship was . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.140105

Sphere Drake Insurance Plc and Another v Orion Insurance Company Plc: ComC 11 Feb 1999

ComC Multi-party run-off agreement made in 1975 to govern parties’ contributions towards run-off based on estimates of likely claims- asbestos-related claims led to final liabilities being vastly greater than estimates permitted. Orion, administration company under the agreement, sought substantial additional contributions from the other original parties to the 1975 agreement. First instance decision in favour of Orion for increased contribution from Sphere Drake; upheld Court of Appeal – 1975 agreement not intended to be final and binding. Finding dependent largely on evidence of one witness. Sphere-Drake pursuant to Tomlin order sought contribution from other original party (Baloise). New court of first instance held 1975 agreement final and binding. Witness now dead, evidence held to have been unreliable. Sphere Drake sued Orion. Issues: perjury – whether open to court to find deceased witness committed perjury – whether party on whose behalf witness called liable for perjury of witness (‘attribution issue’) – whether material – test of materiality – whether Sphere Drake precluded from action against Orion by own election to claim against Baloise.
Held: Deceased witness had not committed perjury. Allegations against Orion directors were unfounded. [Issues of law held not to be material to Judge’s findings, but considered.]
References: [1999] EWHC 286 (Comm)
Links: Bailii
Judges: Langley J
Jurisdiction: England and Wales
This case cites:

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.201658

Legal and General Assurance Society Ltd v Drake Insurance Co Ltd: CA 15 Jan 1992

References: Gazette 15-Jan-1992, [1992] QB 887, [1992] 2 WLR 157
Coram: Lloyd LJ
Ratio: An insurance company, having paid under the policy to a doubly insured party, sought contribution from the second insurer, who had not been notified of the claim by the insured. The claim for a contribution was one in equity, but since the company had paid in excess of their true liability, because of a ‘ratable proportion’ clause, they were not entitled to recover any part of the voluntary payment. The matter should be looked at at the time of the loss before there was any non-compliance with the condition precedent.
Lloyd LJ said: l ‘the principles on which one insurer is entitled to recover from another in a case of double insurance have been settled since Lord Mansfield’s day’.
This case is cited by:

  • Not Followed – Eagle Star Insurance Co Ltd v Provincial Insurance Plc PC (Times 09-Jun-93, [1994] 1 AC 130, Bailii, [1993] UKPC 22)
    Two insurance companies were liable to contribute equally to an amount payable to a third party. The doctrine of contribution could be modified by contract and the matter should be considered by reference to the parties’ contractual liabilities. . .
  • Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA (Bailii, [2006] EWCA Civ 50, Times 09-Feb-06, [2006] 1 WLR 1492, [2007] Lloyd’s Rep IR 173)
    The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
  • Cited – The National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd ComC (Bailii, [2010] EWHC 773 (Comm), [2010] 1 CLC 557)
    Gavin Kealey QC DHCJ set out the concept of double insurance: ‘Double insurance arises where the same party is insured with two (or more) insurers in respect of the same interest on the same subject-matter against the same risks. If a loss by a . .
  • Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC (Bailii, [2015] UKSC 33, [2015] Lloyd’s Rep IR 598, [2015] WLR(D) 233, [2015] 2 WLR 1471, [2016] AC 509, Bailii Summary, WLRD, UKSC 2013/0057, SC, SC Summary, SC Summary Video)
    A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 83017

The Demetra K: CA 2002

References: [2002] 2 Lloyd’s Rep 581
Coram: Lord Phillips of Worth Matravers MR
Ratio: The court set out the elements to be satisfied before ordering a rectification of a commercial contract, in particular, the need for an antecedent agreement with outward expression of a common intent, and convincing evidence sufficient to discharge the burden of proving a common mistake in translating the previous agreement into contractual form.
Held: Those negotiating the contract each assumed that their agreement on a certain matter would have a certain effect, but they had never discussed and agreed upon that effect. There was not enough for rectification: ‘Mr Lee and Mr Mitchell plainly agreed that the Oct. 3 addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr. Mitchell assumed that it would relieve the insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr. Lee had a similar belief. If they both shared that belief this would not establish a claim for rectification of the policy.’ and ‘Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover.’
Jurisdiction: England and Wales
This case cites:

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 200213

Yorkshire Insurance Co Ltd v Nisbet Shipping Co Ltd: QBD 1962

References: [1962] 2 QB 330
Coram: Diplock J
Ratio: The assured alone can give a valid receipt and discharge to a third party against whom a judgment has been given following a successful subrogated claim.
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Bee v Jenson ComC (Times 16-Jan-07, [2006] EWHC 3359 (Comm), Bailii)
    The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .

(This list may be incomplete)

Last Update: 13 March 2019
Ref: 247979

Black King Shipping Corpn and Wayang (Panama) SA v Massie (The Litsion Pride”): 1985″

References: [1985] 1 Lloyd’s Rep 437
Coram: Hirst J
Ratio: The LITSION PRIDE was insured against war risks. The terms required of her owners, notice as soon as practicable of her entry into specified war zones and then to pay an additional premium. The owners traded her into a war zone without giving notice, dishonestly intending to avoid the payment of the additional premium if the vessel got out unscathed. When she was hit by a missile and sunk, they gave the required notice by a letter which they dishonestly backdated to a date before the vessel entered the war zone. The fraud was irrelevant to the merits of the claim, because the vessel was held to be insured under a held covered clause with or without prior notice.
Held: The claim was forfeit on the ground that it was a breach of the insured’s duty of good faith. His decision has not fared well in subsequent decisions.
Jurisdiction: England and Wales

Last Update: 26-Sep-18
Ref: 623434

Britton v The Royal Insurance Company: 1865

References: [1865] EngR 66, (1865) 4 F & F 905, (1865) 176 ER 843
Links: Commonlii
Ratio: A contract of fire insurance being a contract of indemnity, on which the assured is only entitled to recover the value of the property destroyed, and wilful misrepresentation of the value of the property destroyed will-under the usual condition agamst fraudulent claims – defeat and vitiate the whole claim. In an action on a fire insurance policy, containing the usual condition that it should become void in the event of a fraudulent claim the company setting up, in defence, both fraud and arson :-the jury being advlsed by the Judge that, as the case, as to arson, was only one of suspicion, they should decide rather upon the case as to fraud they were also directed, that if they were satisfied that the claim was wilfully faLlse and fraudulent, they should find for the company upon the plea of fraud.

Last Update: 15 August 2018
Ref: 280978

London Assurance Company v Sainsbury: 28 Jun 1783

References: (1783) 3 Dougl 246, [1783] EngR 109, (1783) 3 Doug 245, (1783) 99 ER 636
Links: Commonlii
Coram: Mansfield L, Butler, Willes, Ashurst, JJ
Ratio: An insurance otlice having paid the assured the amount of the loss sustained by him in consequence of a demolishing by rioters, sued the hundredors under the stat. I G. 1, at. 2, e. 5, s. 6, in their own names. HeId by Lord Mansfield and Butler, J. (Willes and Ashurst, J.J,, dissentient), that the office was not erititled to recover.
This case is cited by:

  • Cited – Simpson and Co v Thomson HL ((1877) 3 App Cas 279)
    The House discussed the extent of an insurer’s right of subrogation: ‘My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it . .
  • Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL (House of Lords, Times 13-Feb-02, Bailii, [2002] UKHL 4, [2002] 1 LLR 553, [2002] Lloyds Rep IR 261, [2002] 1 All ER (Comm) 321, 2002 SLT 278, [2002] CLC 741, 2002 SC (HL) 117, [2002] BLR 139, 2002 SCLR 346, 2002 GWD 6-178)
    Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 01-Jan-18
Ref: 191157

Kastor Navigation Co Ltd and Another v AGF M A T and others (Kastor Too”): ComC 4 Dec 2002″

References: [2002] EWHC 2601 (Comm), [2003] 1 All ER (Comm) 277, [2003] 1 Lloyd’s Rep 296
Links: Bailii
Coram: Tomlinson J
Ratio: The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore a constructive total loss (‘CTL’). They said the cause of the loss was not the fire, and the loss was uninsured.
Held: Abandonment of the subject-matter insured will take place by operation of law when the underwriters settle the claim. Section 61 is thus satisfied. The insured has been deprived of his right of choice envisaged by Section 61. He has no option but to treat the vessel as a total loss. Section 62(7) says in terms that notice of abandonment is unnecessary where when the insured receives information of the loss there would be no possibility of benefit to the insurer if notice were given to him. The Claimants were entitled to recover as for a CTL.
Statutes: Marine Insurance Act 1906 6162(7) 77(2)
This case cites:

  • See Also – Kastor Navigation Co Ltd and Another v AGF M A T and others ComC (Bailii, [2003] EWHC 472 (Comm), Times 29-Mar-03)
    The court was able to make costs orders which differentiated between different stages and elements of a case. This might well result, as here, in a situation of a succesful claimant being ordered to pay 80% of the defendant’s costs, because of costs . .
  • Cited – Le Cheminant v Pearson ((1812) 4 Taunt 367)
    The insured having carried out a partial repair folowing one incident, the vessel was then a total loss.
    Held: The insured could recover both losses. . .
  • Cited – Slattery v Mance ([1962] 1 QB 676)
    Where the insured property is damaged in a fire, unless the insurers allege that it had been started deliberately with the connivance of the insured, acceptance that a fire had occurred amounted to admission of the operation of an insured peril. . .
  • Cited – Robertson v Nomikos HL ([1939] AC 371)
    The ship suffered a constructive total loss under the terms of their freight insurance policy, which stipulated that the value when repaired was to be taken as the insured value. The cost of repairs was greater than the insured value, but less than . .
  • Cited – Bank of America National Trust and Savings Association v Chrismas (‘The Kyriaki’) QBD ([1993] 1 Lloyd’s Rep 137, Times 26-Aug-92)
    When a party seeks to add a new defendant by the amendment of a writ, that amended writ must be served within the applicable limitation period. For limitation purposes the assured’s cause of action arose at the date of the CTL casualty, that a . .
  • Cited – Chandris v Argo Insurance Ltd ([1963] 2 LLoyds Rep 64)
    Terms of an insurance policy for the very nature of the loss may require a particular method of computation or process of quantification of loss before payment is due. Ordinarily, the right to the indemnity accrues as soon as the loss has been . .
  • Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL ([1991] 2 AC 1, Gazette 25-Jul-90, [1990] 2 Lloyds Rep 191)
    The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
    Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
  • Cited – Andersen v Marten CA ([1908] 1 KB 601)
    The vessel was first taken captive and then lost. The insurer said that actual loss was caused by the capture, which was excepted.
    Held: The right to claim as a constructive total loss had not been affected. . .
  • Cited – PYSBE v Beer ([1946] 79 LLR 417)
    The court considered how an event after the insured event may affect the insurance claim: ‘once you have got a constructive total loss, the mere fact that it may ultimately become an actual loss because of some event that is not within the policy . .
  • Cited – Andersen v Marten HL ([1908] AC 334)
    The ship was a total loss by capture before she became a wreck by perils of the seas. . .
  • Cited – Livie v Janson ([1810] 12 East 648)
    The time to estimate the loss under an insurance claim where the party is put to no expense, as in the case of unrepaired damage, is at the expiration of the risk. In the case of a partial damage short of a total loss left unrepaired, the insured . .
  • Cited – Kaltenbach v Mackenzie CA ([1878] 3 CPD 467)
    The court described the origin of the necessity of giving a notice of abandonment in a shipping insurance claim and explained its function.
    Brett LJ said: ‘This case raises the questions of abandonment and notice of abandonment on a policy of . .
  • Cited – British and Foreign Insurance Co Ltd v Wilson Shipping Co Ltd HL ([1921] 1 AC 188)
    The vessel was insured against perils of the sea and suffered damage by a risk covered by the policy. Before the damage was repaired she was lost, still during the currency of the policy, but by a risk which is not covered by the policy.
    Held: . .
  • Cited – Hahn -v Corbett ([1824] 2 Bing 206)
    The cargo, Manchester cotton goods, was insured against marine risks from London to Maracaibo ‘warranted free from capture and seizure.’ The vessel was grounded off Maracaibo and became a constructive total loss. Ninety-five per cent of the cargo . .
  • Cited – Roux v Salvador CeC ([1836] Bing NC 266)
    Hides were insured for their journey. Unfortunately they were in a process of putrefaction which would have been complete by the time of arrival at the port of destination, Bordeaux, such that on arrival they could not properly have been described . .
  • Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL ([1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15, Bailii)
    The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
  • Cited – The Marel CA ([1994] 1 Lloyd’s Law Rep 624)
    . .
  • Cited – The Ikarian Reefer CA ([1995] Lloyd’s Rep 455)
    The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
  • Cited – Northern Shipping Company v Deutsche Seereederei Gmbh and others (‘The Kapitan Sakharov’) CA (Bailii, [2000] EWCA Civ 400, [2000] 2 Lloyd’s Law Rep 255)
    A carrier: (a) should not be exposed to an infinite liability in time; and (b) is not, without more, liable for latent defects in a vessel before it acquired it. The relevant failure to exercise due diligence must relate to the performance of a . .

(This list may be incomplete)
This case is cited by:

  • See also – Kastor Navigation Co Ltd and Another v AGF M A T and others ComC (Bailii, [2003] EWHC 472 (Comm), Times 29-Mar-03)
    The court was able to make costs orders which differentiated between different stages and elements of a case. This might well result, as here, in a situation of a succesful claimant being ordered to pay 80% of the defendant’s costs, because of costs . .
  • Appeal from – Kastor Navigation Co Ltd and Another v Axa Global Risks (Uk) Ltd and others CA (Bailii, [2004] EWCA Civ 277, Times 29-Apr-04)
    The Kastor Too had been lost in a fire. After substantial litigation, the insurers now appealed an order finding a constructive total loss (it was beyond economic repair or recovery). They had said that it was already beyond repair immediately . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 19-Nov-17
Ref: 178942

Ian Robert Galloway v Guardian Royal Exchange (Uk) Limited: CA 15 Oct 1997

References: [1997] EWCA Civ 2487, [1999] LRIR 209
Links: Bailii
Ratio: The claimant’s policy had been declared void ab initio by the court. On the application form he had falsely stated that he had no convictions, but had only shortly before been convicted of obtaining a pecuniary advantage by deception. Part of the claim had also been found to be dishonest, and had been convicted of an offence for that.
Held: That fraudulent part contaminated the whole claim. The contract of insurance being one of utmost good faith, the assured could not first make a fraudulent claim , then seek to leave that part and pursue the rest. He will forfeit all benefit under the policy whether there is a condition to that effect or not.’ The appeal failed.
This case cites:

  • Cited – J Britton v Royal Insurance Company ((1866) 4 F&F 905)
    It was an express condition of the insurance policy that a fraudulent part of a claim would avoid the balance of the claim. In directing the jury: ‘The law is, that a person who had made such a fraudulent claim could not be permitted to recover at . .
  • Cited – Orakpo v Barclays Insurance Services and Another CA ([1995] Ll RLR 443)
    The insured sought to claim under his policy. The insurance company declined any payment, saying that part of the claim was fraudulent.
    Hoffmann LJ said: ‘In my view, the claim also fails on the ground that it was substantially fraudulent. The . .
  • Cited – Lek v Mathews ([1927] 29 Ll LR)
    Part of an insurance claim was fraudulent. The policy required that if one part fell, all the claim fell: ‘As to the construction of the false claim clause, I think that it refers to anything falsely claimed, that is, anything not so unsubstantial . .

(This list may be incomplete)
This case is cited by:

  • Cited – Axa General Insurance Limited v Gottlieb CA (Bailii, [2005] EWCA Civ 112, Times 03-Mar-05, [2005] 1 All ER (Comm) 445))
    The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
    Held: At common law, fraud in an insurance claim, once . .

(This list may be incomplete)

Last Update: 01 February 2017
Ref: 142885

Zurich Australian Insurance Ltd v GIO General Ltd; 10 Mar 2011

References: [2011] NSWCA 47
Links: Austlii
Coram: Allsop P, Giles JA, Young JA
Ratio: Austlii (Supreme Court of New South Wales – Court of Appeal) INSURANCE – Double insurance principle – two different insureds entitled to indemnity from two different insurers with respect to separate liabilities for the same injury – contribution between insurers – extended contribution principle in AMP Workers Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35 – uncrystallised liability sufficient for purposes of double insurance – second insurer concurred in first insurer indemnifying its insured in the injury – proof of liability of second insurer’s insured – first insurer’s indemnity discharged that liability – second insurer required to share burden of indemnity – sufficient to declare entitlement to contribution
This case is cited by:

(This list may be incomplete)

Last Update: 01-Jul-16
Ref: 566219

AMP Workers Compensation v QBE; 19 Sep 2001

References: [2001] NSWCA 267, (2001) 53 NSWLR 35
Links: Austlii
Coram: Mason P, Handley, Beazley JJA
Ratio: Austlii (Supreme Court of New South Wales – Court of Appeal) FACTS
The appeal involved a question of double insurance. The employer held a compulsory third party policy with QBE Insurance Limited in respect of a motor vehicle and a current workers’ compensation policy with AMP Workers’ Compensation Services (NSW) Limited. An employee in the course of his employment was injured by another employee negligently driving in the course of his employment with the same employer.
The first employee commenced proceedings against the second employee but did not seek to join the employer although it would have been vicariously liable. Those proceedings were settled. QBE satisfied the judgment debt as the compulsory third party policy covered the employee as the driver of the vehicle. QBE then claimed contribution from AMP. AMP argued that there was no relevant double insurance because its workers’ compensation policy did not cover the negligent employee who was liable and entitled to indemnity from QBE, and the employer it did insure was never liable and never entitled to indemnity under either policy.
The dispute turned on the relevant date for the purposes of determining the question of double insurance. AMP contended that this had to be determined after the event when the claim for contribution was made. QBE contended that the question must be determined at the date of casualty. In the latter case there would clearly be double insurance in this case.
HELD (per Handley JA, Mason P and Beazley JA agreeing)
(i) The right of contribution only exists in respect of insurances which are contracts of indemnity, where two or more insurers are on risk in respect of the same loss or liability. The right arises when and because one of the insurers has paid more than his proper share of the common demand. Where one insurer has paid in full the indemnity is satisfied and the insured has no right of indemnity against any other insurer. The right of contribution therefore cannot depend on the continued existence of coordinate liabilities for the same demand because the very payment by one which calls the right into existence will have put an end to the liability of the other insurance.
(ii) The judgments in Albion Insurance Co Limited v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342 require the question of double insurance to be determined at the time of the casualty. Although the present question did not arise in Albion Insurance, the focus in both judgments was on the contractual position at the time of the casualty when the loss in the one case, or the liability in the other, accrued.
(iii) There is no reason in precedent or principle why the right of contribution should be defeated by the existence of a second layer of choice available to another party. It should not rest with either of the persons who had available choices to exercise those choices in a way which would leave the ultimate burden on one of the insurers without any right of contribution from the other.
ORDER
Appeal dismissed with costs.
This case is cited by:

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 566218

Godin Et Al v London Assurance Company; 9 Feb 1758

References: [1758] EngR 138, (1758) 1 Burr 489, (1758) 97 ER 419
Links: Commonlii
Coram: Lord Mansfield
Ratio:The defendant insurers contended that because there had been double insurance they ought only to have to pay half the loss, although neither insurer had as yet paid any sum. They appealed against an order that it pay the whole loss.
Held: The appeal failed. Lord Mansfield said: ‘Before the introduction of wagering policies, it was, upon principles of convenience, very wisely established, that a man should not recover more than he had lost. Insurance was considered as an indemnity only, in case of a loss: and therefore the satisfaction ought not to exceed the loss . . If the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute pro rata, to satisfy that loss against which they have all insured . . Where a man makes a double insurance of the same thing, in such a manner that he can clearly recover, against several insurers in distinct policies, a double satisfaction, ‘the law certainly says that he ought not to recover doubly for the same loss, but be content with one single satisfaction for it’ . . And if the whole should be recovered from one, he ought to stand in the place of the insured, to receive contribution from the other, who was equally liable to pay the whole.’
This case cites:

  • See Also – Godin -v- The London Assurance Company (Commonlii, [1746] EngR 202, (1746-1779) 1 Black W 104, (1746) 96 ER 58)
    Insurance made by a factor, who has a lien on the goods of his principal, does not pass by a consignmerit of the goods insured to a third person, by the principal. . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 342439

Albion Insurance Co Ltd v Government Insurance Office (NSW); 31 Oct 1969

References: [1969] HCA 55, (1969) 121 CLR 342
Links: Austlii
Coram: Barwick CJ, McTiernan, Kitto, Menzies and Windeyer J.
Ratio:(High Court of Australia) Insurance – Contribution between insurers – Identity of risk insured – Loss covered by two policies – General nature and purpose of policies different – Extent of rights and liabilities created under policies different – Workers’ compensation policy with indemnity extended to include employer’s common law liability – Motor vehicle third party policy covering employer’s liability to employee arising out of use of motor vehicle.
Kitto J said: ‘ ‘a principle applicable at law no less than in equity, is that persons who are under co-ordinate liabilities to make good one loss (eg sureties liable to make good a failure to pay the one debt) must share the burden pro rata’: the object being, as Hamilton J stated in American Surety Co of New York v Wrightson (1910) 103 LT 663: ‘to put people who have commonly guaranteed or commonly insured in the same position as if the principal creditor or the assured had pursued his remedies rateably among them instead of doing as he is entitled to do, exhausting them to suit himself against one or other of them.”
This case is cited by:

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 566217

Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (the ‘Padre Island’) (No 2): 1987

References: [1987] 2 Lloyd’s Rep 529
Coram: Mr Justice Saville
Ratio:
Statutes: Third Parties (Rights Against Insurers) Act 1930 1(3)
This case is cited by:

(This list may be incomplete)

Last Update: 20-Jun-16
Ref: 223314

Brownsville Holdings Ltd v Adamjee Insurance Co Ltd (‘The Milasan’): 2000

References: [2000] 2 Lloyd’s Rep 458, [2000] EWHC 223 (Comm)
Links: Bailii
Coram: Aikens J
A 90 foot motor yacht sank in calm weather in the course of a voyage from Piraeus to Sardinia with a crew of three: a skipper, an engineer and a deckhand.
Held: The owner’s insurance claim failed. There had been a breach of warranty in these terms: ‘Warranted professional skippers and crew in charge at all times.’ The claimants accepted that this was a promissory warranty – there was no argument that it was a term simply delimiting or describing the risk. Aikens J: ‘I accept . . that a practical construction must be given to the words of the warranty. I think it is clear that the insurers were concerned to ensure that the vessel was properly looked after all the time, both winter and summer, and wherever she was – whether cruising or in a marina for the winter months.
The ‘skipper’ together with the ‘crew’ has to be ‘in charge’ of the vessel ‘at all times’. In my view the wording ‘professional skippers and crew to be in charge’ means that the skipper and the crew’ together are to take care of and manage the vessel; that is the sense in which they are to be ‘in charge’ of her. They are also to be ‘in charge’ of the vessel together ‘all the time’. The last phrase is . . quite clear. It means that there must be a professional skipper and a crew that looks after the vessel the whole time, as opposed to intermittently or at intervals.’ As the claimants had not employed anyone who was a ‘professional skipper’ over a period of time, they were in breach of warranty. In summary ‘On the proper construction of the ‘professional skipper warranty’ the claimants were obliged to keep a suitably qualified skipper on board the yacht at all times . . ..’
This case is cited by:

  • Cited – GE Frankona Reinsurance Ltd -v- CMM Trust No.1400 (the ‘Newfoundland Explorer’) AdCt (Bailii, [2006] EWHC 429 (Admiralty), Times 02-May-06, [2006] 1 Lloyd’s Rep IR 704)
    The owner sought to claim under his insurance policy. The yacht was, in the policy warranted to be fully crewed at all times. The owner had left the boat to return a few hours later when it was found on fire.
    Held: The insurance claim failed. . .
  • Cited – Pratt -v- Aigaion Insurance Company SA (‘the Resolute’) CA (Bailii, [2008] EWCA Civ 1314, Times, [2009] Lloyd’s Rep IR 149, [2008] 2 CLC 756, [2009] 2 All ER (Comm) 387, [2009] 1 Lloyd’s Rep 225)
    The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .

(This list may be incomplete)
Last Update: 25-Oct-15 Ref: 242640

Roux v Salvador; CeC 1836

References: [1836] Bing NC 266
Coram: Lord Abinger CB
Hides were insured for their journey. Unfortunately they were in a process of putrefaction which would have been complete by the time of arrival at the port of destination, Bordeaux, such that on arrival they could not properly have been described as hides.
Held: Lord Abinger CB: ‘In the case before us the jury have found that the hides were so far damaged by a peril of the sea, that they never could have arrived in the form of hides. By the process of fermentation and putrefaction, which had commenced, a total destruction of them before their arrival at the port of destination, became as inevitable as if they had been cast into the sea or consumed by fire. Their destruction not being consummated at the time they were taken out of the vessel, they became in that state a salvage for the benefit of the party who was to sustain the loss, and were accordingly sold; and the facts of the loss and the sale were made known at the same time to the assured. Neither he nor the underwriters could at that time exercise any control over them, or by any interference alter the consequences. It appears to us, therefore, that this was not the case of what has been called a constructive loss, but of an absolute total loss of the goods: they could never arrive; and, at the same moment when the intelligence of the loss arrived, all speculation was at an end.’
This case is cited by:

  • Cited – Kastor Navigation Co Ltd and Another -v- AGF M A T and others (‘Kastor Too’) ComC (Bailii, [2002] EWHC 2601 (Comm), [2003] 1 All ER (Comm) 277, [2003] 1 Lloyd’s Rep 296)
    The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .

(This list may be incomplete)
Last Update: 19-Oct-15 Ref: 251810

Mason v Sainsbury; 19 Apr 1782

References: (1782) 3 Dougl 61, [1782] EngR 37, (1782) 3 Doug 61, (1782) 99 ER 538
Links: Commonlii
Coram: Lord Mansfield CJ, Buller J
A claim was made upon insurance after a riot. The court asked asked ‘Who is first liable?’ This was not an issue of chronology but of establishing where the primary responsibility lay to make good the loss. The Act laid the primary responsibility with the inhabitants of the hundred, and it did not matter that the insurer had indemnified the insured. Lord Mansfield said: ‘The facts of this case lie in a narrow compass. The argument turns much on want of precision in stating the case, as most arguments do. The office paid without suit, not in ease of the hundred, and not as co-obligors, but without prejudice. It is, to all intents, as if it had not been paid. The question, then, comes to this, can the owner, having insured, sue the hundred? Who is first liable? If the hundred, it makes no difference; if the insurer, then it is a satisfaction, and the hundred is not liable. But the contrary is evident from the nature of the contract of insurance. It is an indemnity. Every day the insurer is put in the place of the insured. In every abandonment it is so. The insurer uses the name of the insured. The case is clear: the Act puts the hundred, for civil purposes, in the place of the trespassers; and, upon principles of policy, as in the case of other remedies against the hundred, I am satisfied that it is to be considered as if the insurers had not paid a farthing.’
Buller J said: ‘The better way is to consider this as a contract of indemnity. The principle is, that the insurer and insured are one, and, in that light, paying before or after can make no difference. I am, therefore, clearly of opinion, that the hundred cannot avail themselves of this defence.’ and ‘It has been admitted, and rightly, that the hundred is put in the place of the trespassers.’
Willes J said: ‘I am of the same opinion . . The hundred is not answerable criminally, but they cannot be considered as free from blame. They may have been negligent, which is partly the principle of the Act.’
Statutes: Riot Act 1714
This case is cited by:

  • Cited – Simpson & Co -v- Thomson HL ((1877) 3 App Cas 279)
    The House discussed the extent of an insurer’s right of subrogation: ‘My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it . .
  • Cited – Caledonian North Sea Ltd -v- London Bridge Engineering Ltd and Others HL (House of Lords, Times 13-Feb-02, Bailii, [2002] UKHL 4)
    Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
  • Cited – Yarl’s Wood Immigration Ltd and Others -v- Bedfordshire Police Authority CA (Bailii, [2009] EWCA Civ 1110, [2010] 2 WLR 1322, [2010] 2 All ER 221)
    The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .

Last Update: 11-Sep-15 Ref: 191156

Goddart v Garrett; 16 Jun 1692

References: [1692] EngR 46, (1692) 2 Vern 269, (1692) 23 ER 774 (A)
Links: Commonlii
One having no interest in the ship, lends £300 on a bottomry bond, and insures £450 on the ship ; policy decreed to be delivered up. — One having no interest in a ship insures it, the insurance is void, though the policy runs, interest or no interest. But if he is interested in the ship, he may insure more than the value of his interest. Where one insures a ship, if he would have any benefit of the insurance, he must renounce his interest in the ship.
Last Update: 02-Sep-15 Ref: 393135

Grove And Another, Assignees of Liotard, A Bankrupt, v Dubois; 31 Jan 1786

References: [1786] EngR 42, (1786) 1 TR 112, (1786) 99 ER 1002
Links: Commonlii
A commission del credere is an absolute engagement to the principal from the broker, and makes him liable in the first instance. A broker with such a commission may set-off, under the general issue, a loss upon a policy happening before a bankruptcy, to an action by the assignees of the bankrupt, for premiums upon various policies under-written by him, and for which he had debited the broker : but such a loss carinot be proved under a riotice of set-off.

HLB Kidsons (A Firm) v Lloyds Underwriters (Policy No 621/Pkid00101) and others; Comc 22 Nov 2007

References: [2007] EWHC 2699 (Comm)
Links: Bailii
Coram: Gloster J
This case cites:

This case is cited by:

J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd ‘The Miss Jay Jay’: 1985

References: [1985] 1 Lloyd’s Rep 264
Coram: Mustill J
Mustill J considered liability under a marine insurance where damage was suffered when the sea state was within what might reasonably be anticipated: ‘The cases make it quite plain that if the action of the wind or sea is the immediate cause of the loss, a claim lies under the policy notwithstanding that the conditions were within the range which could reasonably have been anticipated’.
Mustill J said: ‘Assuming, therefore, that the cases on ‘perils of the seas’ may properly be cited in the present context, what principles do they lay down? I think it helpful, when approaching this difficult area of the law, to draw two sets of distinctions. The first relates to weather conditions, which for present purposes may be divided into three categories: (i) ‘Abnormally bad weather’. Here the weather lies outside the range of conditions which the assured could reasonably foresee that the vessel might encounter on the voyage in question. (ii) ‘Adverse weather’: namely, weather which lies within the range of what could be foreseen, but at the unfavourable end of that range. In effect, the weather is worse than could be hoped, but no worse than could be envisaged as a possibility. (iii) ‘Favourable weather’: namely, weather which lies within that range, but is not bad enough to be classed as ‘adverse’. At the other extreme of the range from ‘adverse’ weather can be found what may be called ‘perfect’ weather.
The assignment of the conditions of wind and sea encountered on any particular occasion to one of these categories will vary according to the nature of the voyage: what is abnormal weather for a short passage in sheltered waters may well be commonplace on a winter voyage in the North Atlantic. Similarly, the nature of the vessel will have to be taken into account. Some craft are not intended to endure conditions which would be trivial for a more robust vessel.
‘The second distinction relates to seaworthiness, and is one of degree. A vessel is ‘unseaworthy’ if it is unfit to face all the hazards which ‘a ship of that kind, and laden in that way, may fairly be expected to encounter’ on the voyage: Steel v. State Line S.S. Co., (1877) 3 App. Cas. 72, at p. 77. Thus the vessel must be fit to deal adequately with adverse as well as favourable weather. Moreover, quite apart from mere unseaworthiness, there may be instances in which the ship is in such a weak condition that it cannot withstand even perfect weather. Borrowing a word from Wadsworth Lighterage & Coaling Co. v. Sea Insurance Co., (1929) 34 Ll.L.Rep. 98 at p. 105, the ship may be said to suffer from ‘debility’. All debilitated ships are unseaworthy, but the contrary is not the case.
‘With these distinctions in mind, I believe that the effect of the authorities, so far as material to the present case, may be quite briefly stated as follows.
First, as to ‘perils of the seas’. The definition contained in r. 7 of the rules for the construction of policy set out in the first schedule to the Act excludes ‘the ordinary action of the winds and waves’. While it is tempting to deduce from these words that a loss is not recoverable unless it results from weather which is extraordinary (namely, what I have referred to as abnormal weather conditions) this interpretation is mistaken. The principal object of the definition is to rule out losses resulting from wear and tear. The word ‘ordinary’ attaches to ‘action’, not to ‘wind and waves’. The cases make it quite plain that if the action of the wind or sea is the immediate cause of the loss, a claim lies under the policy notwithstanding that the conditions were within the range which could reasonably have been anticipated. All that is needed is (in the words of Lord Buckmaster in Grant, Smith & Co. v. Seattle Construction and Dry Dock Co., [1920] A.C. 162 at p. 171)-
. . . some condition of sea or weather or accident of navigation producing a result which but for these conditions would not have occurred.
See also Hamilton, Fraser & Co. v. Pandorf & Co., (1887) 12 App. Cas. 518 at p. 527; Canada Rice Mills v. Union Marine and General Insurance Co., (1941) 67 Ll.L.Rep. 549; [1941] A.C. 55 ; N. E. Neter & Co. v. Licences and General Insurance Co., (1944) 77 Ll.L.Rep. 202 at p. 205.
Second, as to causation. It may be that the doctrine of proximate cause has undergone some reassessment since the days when the most important cases on the present topic were decided. In those days the ultimate cause was more readily identified as the proximate cause than might be the case today. Nevertheless, it is clearly established that a chain of causation running – (i) initial unseaworthiness; (ii) adverse weather; (iii) loss of watertight integrity of the vessel; (iv) damage to the subject-matter insured – is treated as a loss by perils of the seas, not by unseaworthiness: see, for example, Dudgeon v. Pembroke, (1874) 9 Q.B. 581, per Mr. Justice Blackburn at p. 595, and (1877) 2 App. Cas. 284 , per Lord Penzance at p. 296, and Frangos v. Sun Insurance Office, (1934) 49 Ll.L.Rep. 354, at p. 359.
Third, as to ‘debility’. Where a ship sinks through its own inherent weakness, there is no loss recoverable under the ordinary form of policy. It is not enough for this purpose that the vessel is unseaworthy. The loss must be disassociated from any peril of wind or water, even if these form the immediate context of the loss, and constitute the immediate agency (for example, the percolation of water through an existing flaw in the hull) by which the loss takes place. As Lord Buckmaster said in Grant, Smith v. Seattle Construction, sup., the policy is not a guarantee that a ship will float. See also Fawcus v. Sarsfield, (1856) 6 E. & B. 192, in relation to the first loss; Merchants’ Trading Co. v. Universal Marine Insurance Co., (1870) 2 Asp. M.L.C. 431, the direction of Mr. Justice Lush approved by the Court of Common Pleas; Ballantyne v. Mackinnon, [1896] 2 Q.B., 455; Sassoon v. Western Assurance Co., [1912] A.C. 561.
Finally, as to the requirement that a loss by perils of the seas shall be ‘fortuitous’. There may be philosophical problems here, possibly compounded by the placing of more weight than it was intended to bear on the apophthegm of Lord Herschell in Wilson, Sons & Co. v. Owners of Cargo per the ‘Xantho’, ((1887) 12 App. Cas. 503 at p. 509) that-
. . . the purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen.
There can be few losses of which it can be said that they must happen, in the sense that this accident is bound to happen in this way at this time. Indeed, in some of the leading cases it could hardly have been predicted that the loss was bound to happen at all, whilst the policy was on risk. It is, however, unnecessary to enter into this problem. When the vessel succumbs to debility, the claim fails, not because the loss is quite unattended by fortuity, but because it cannot be ascribed to the fortuitous action of the wind and waves. A decrepit ship might sink in perfect weather tomorrow, or it might not sink for six months. To this extent a loss tomorrow is not inevitable. But if the ship does sink, there is no external fortuitous event which brings it about. In respect of such losses, the ordinary marine policy does not provide a remedy.
‘In the light of these propositions, I now return to the facts of the present case. Miss Jay Jay was plainly unseaworthy, but can it be said that the craft suffered from debility in the sense to which I have referred? It seems to me that the answer must be – ‘No’. There is no reason to suppose that the boat would have sunk at her moorings, or while under way in a millpond sea. Indeed, she had only recently completed a Channel crossing. Conversely, if one asked whether the loss was due to the fortuitous action of the wind and waves, the answer must be – ‘Yes’. True, the weather was not exceptional, but this is immaterial. Whichever of the expert witnesses may be right as to the mechanism of the structural failure, the immediate cause was the action of adverse weather conditions on an ill-designed and ill-made hull. The cases show that this is sufficient to bring the loss within the words of a time policy in the standard form. Since I consider that there is, for present purposes, no material distinction between ‘perils of the seas’ and ‘external accidental means’, I hold that the plaintiffs establish a prima facie loss under section 1 (a) of the policy.’
Statutes: Marine Insurance Act 1906 55(1)
This case cites:

  • Cited – Steel -v- State Line Steamship Co ((1877) 3 AC 72)
    An insured ship should be ‘in a condition to encounter whatever perils of the sea a ship of that kind and laden in that way may be fairly expected to encounter.’ However, an express exception of negligence did not cover loss due to unseaworthiness. . .

This case is cited by:

  • Appeal from – The Miss Jay Jay CA ([1987] 1 Lloyds Rep 32)
    . .
  • Cited – Global Process Systems Inc and Another -v- Berhad CA (Bailii, [2009] EWCA Civ 1398, Times, [2010] Lloyd’s Rep IR 221, [2009] 2 CLC 1056, [2010] 1 Lloyd’s Rep 243)
    An oil rig suffered major damage in transit in rough seas. The insurers repudiated liability saying that the damages was the result of a natural vice rather than perils at sea.
    Held: The fact that the sea conditions were within the range of . .
  • Appeal from – J J Lloyd Instruments Ltd -v- Northern Star Insurance Co Ltd (The ‘Miss Jay Jay’) CA ([1987] 1 Lloyd’s Rep 32)
    The owner claimed for damage to the hull of the Jay Jay.
    Held: Where there are two operative causes, one covered by the policy risks and one not, then provided that the second cause is not an excluded peril, the Assured can recover. There was . .
  • Cited – Global Process Systems Inc and Another -v- Berhad SC (Bailii, [2011] UKSC 5, Bailii Summ, UKSC 2010/0006, SC Summ, SC, [2011] 1 All ER 869, [2011] 1 Lloyds Rep 560, [2011] Bus LR 537, 2011 AMC 305)
    An oil rig was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
    Held: The insurer’s . .
  • Cited – Petroleo Brasileiro Sa -v- Ene Kos 1 Ltd (‘The MT Kos’) SC (Bailii, [2012] UKSC 17, [2012] 2 WLR 976, Bailii Summary, UKSC 2010/0157, SC Summary, SC)
    The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .

West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and Another (‘The Front Comor’): ComC 21 Mar 2005

References: [2005] EWHC 454 (Comm)
Links: Bailii
Coram: Mr Justice Colman
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords.
Statutes: EC Regulation 44/2001, Administration of Justice Act 1969 12, Supreme Court Act 1981 37(1)
This case cites:

This case is cited by:

Callander v Oelrichs And Another; 12 Nov 1838

References: , [1838] EngR 915, (1838) 5 Bing NC 58, (1838) 132 ER 1026
Links: Commonlii
The court considered the extent of a duty of care which might be owed by an agent.
Bosanquet J. said: ‘The jury were warranted in concluding, that if the Defendants were to effect an insurance upon the terms in question, they undertook to give notice in case of failure: that undertaking arises out of the nature of the case, and the relation in which the parties stood to each other: and according to the principle laid down in Smith v. Lascelles if a merchant is led, from previous transactions, to expect that his correspondent will effect an insurance, he has a right to rely on his discharging that duty, unless he receives a letter to the contrary.
Whether that expectation arises from previous dealings, or from an undertaking to insure in the particular instance, can make no difference; and Buller J. says, ‘Where the merchant abroad has no effects in the hands of his correspondent, yet, if the course of dealing between them be such that the one has been used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insurance will be obeyed, unless the latter give him notice to discontinue that course of dealing.”

North River Ins Co v American Home Assurance Co; 15 Mar 1989

References: (1989) 210 Cal App 3d 108
Links: Justia
Coram: Woods (Fred), J, Lillie, P J., and Johnson, J
California Court of Appeals
This case is cited by:

  • Cited – Teal Assurance Company Ltd -v- WR Berkley Insurance (Europe) Ltd SC (Bailii, [2013] UKSC 57, [2014] Lloyd’s Rep IR 56, [2013] WLR(D) 332, [2013] 2 CLC 390, [2013] 4 All ER 643, [2013] BUS LR 109, [2013] 2 All ER (Comm) 1009, WLRD, Bailii Summary, UKSC 2012/0014, SC Smmary, SC)
    An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .

Britain Steamship Company Limited v The King and Others (‘The Matiana’): CA 1919

References: [1919] 2 KB 670
Coram: Bailhache J
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in the dark under the command of a naval officer to avoid possible torpedos. The court considered whether a merchant ship had been acting when in convoy as a military vessel: ‘sailing in convoy on a chosen route and taking precautionary measures [zig-zagging] necessary because of the presence of hostile submarines had led to the vessel being stranded. It was subsequently torpedoed’.
Held: There was no negligence on the part of the ship’s master or of the naval officer. The loss was not he proximate consequence of warlike operations, and responsibilty fell on the insurers, and not the King.
This case is cited by:

(This list may be incomplete)
Last Update: 19-Jan-16 Ref: 237696