A cargo of casks and bags of china clay out-turned damaged, as a result of the stoving in of the casks on a voyage during which there had been heavy weather.
Held: The claim failed. The plaintiffs had not proved that the proximate cause of the loss was the rough weather. The causing of the damage was ‘equally consistent with defects in the casks, accidents during loading, bad stowage, rough weather, or accidents during or after discharge’ However, had it been shown to be the heavy weather, he would have held there to have been a loss by perils of the sea, even though there was nothing abnormal or unexpected in the weather on such a voyage in the month in which it occurred. Tucker J said: ‘Having regard to Thames and Mersey Marine Insurance Co Ltd v Hamilton, Fraser and Co (1887) 12 App Cas 484, the Xantho case (1887) 12 App Cas 503, and Hamilton, Fraser and Co v Pandorf and Co (1887) 12 App Cas 518, and the recent Privy Council decision in Canada Rice Mills, Ltd v Union Marine and General Insurance Co Ltd [1941] AC 55, I think it is clearly erroneous to say that, because the weather was such as might reasonably be anticipated, there can be no peril of the seas. There must, of course, be some element of the fortuitous or unexpected to be found somewhere in the facts and circumstances causing the loss, and I think such an element exists when you find that properly stowed casks, in good condition when loaded, have become stoved in as a result of the straining and labouring of a ship in heavy weather. It is not the weather by itself that is fortuitous; it is the stoving in due to the weather, which is something beyond the ordinary wear and tear, of the voyage. This appears to me to be ‘something which could not be foreseen as one of the necessary incidents of the adventure’. It was ‘an accident which might happen, not an event which must happen’, to quote the language of Lord Herschell in the Xantho.’
Judges:
Tucker J
Citations:
[1944] 4 All ER 341
Jurisdiction:
England and Wales
Cited by:
Cited – Global Process Systems Inc and Another v Berhad CA 17-Dec-2009
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 . .
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: 12 April 2022; Ref: scu.384352