The insured vessel, a houseboat, was towed alongside a tug some seven and half miles to Northam. Her topside seams were leaky and defective. The breast wave thrown up by the two vessels caused water to mount up against the seams and enter and sink the houseboat. Some four feet of water entered in 100 minutes towing at a moderate speed.
Held: It was no necessary answer to a claim for loss by perils of the sea that the loss only occurred because the vessel was unseaworthy. After negativing the existence of any warranty or defence under section 39(5) of the 1906 Act, Lord Birkenhead LC turned without further consideration of unseaworthiness to the question whether the vessel had met with any peril of the sea. The fact that ‘loss caused by the entrance of sea water is not necessarily a loss by perils of the seas’. In the event, the House upheld concurrent decisions of the courts below that the breast wave ‘amounted to a peril of the seas just as must as if it had been occasioned by a high wind’, and that sinking by such a wave was ‘a fortuitous casualty; whether formed by passing steamers or between tug and tow, it was beyond the ordinary action of wind and wave, or the ordinary incidents of such towage’. The breast wave was said to be a ‘wash of an extraordinary character’ Viscount Finlay said that ‘There must be some special circumstance such as heavy waves causing the entrance of the sea water to make it a peril of the seas.’
Judges:
Lord Birkenhead LC, Viscount Haldane and Viscount Cave, Viscount Finlay, Lord Sumner
Citations:
[1921] AC 615
Statutes:
Marine Insurance Act 1906 39(5)
Jurisdiction:
England and Wales
Cited by:
Cited – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) 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: . .
Lists of cited by and citing cases may be incomplete.
Insurance
Updated: 15 May 2022; Ref: scu.428512
