Andersen v. Marten [1908] UKHL 693
(Before the Lord Chancellor (Loreburn) , Earl Of Halsbury , Lords Ashbourne and Robertson .)46 SLR 693Andersen v. Marten.( On Appeal from the Court of Appeal in England .)
Subject_ Marine Insurance — Time Policy — Exception of “Capture, Seizure, Detention, and the Consequences of Hostilities” — Total Loss after Capture before Condemnation. Facts:A ship was insured against perils of the sea under a time policy for total loss only, and “warranted free from capture, seizure, detention, and the consequences of hostilities.” She carried contraband of war and was seized by a belligerent cruiser. While under control of the captors she ran aground and became a total loss, partly in consequence of damage which she had sustained by perils of the sea before capture. After the ship's total loss she was condemned by the belligerent prize-court.Held that upon the date of the capture there was a total loss by capture which the policy did not cover.The owner of the s.s. “Romulus” sought to recover her loss from an underwriter, who was the respondent. He appealed from a judgment of the Court of Appeal ( Cozens-Hardy, M.R. , Moulton and Parwell, L.JJ. ), affirming that of Channell, J. , in favour of the respondent. The circumstances appear sufficiently from the judgment of the Lord Chancellor pronounced after their Lordships had taken time for consideration.Lord Chancellor (Loreburn) —In this case the owner of the steamship “Romulus” insured that vessel for twelve months, from the 12th January 1905, in a policy expressed to be on disbursements. At the trial it was agreed, no doubt with propriety, that the rights under this insurance were to be determined as though it had been on hull and machinery. The perils usual in a Lloyd's policy, including perils of the seas, men-of-war, takings at sea, arrests, restraints, and detainments, appear in the policy. But the risk insured was only against total loss. And there is the following clause:—“Warranted free from capture, seizure, and detention, and the consequences of hostilities, piracy, and barratry excepted.” The “Romulus,” a German vessel, sailed during the currency of this policy for Vladivostock, a naval port and basis of naval operations in the war between Russia and Japan then raging. She carried coal, which had been proclaimed contraband of war. In order to avoid Japanese cruisers, the “Romulus” took a circuitous course to the north, and was so injured by ice that the master made for Hakodate, a Japanese port, for refuge. On the 26th February 1905 she was stopped by aPage: 694 ↓
The real question is whether there was a total loss by capture, seizure, or detention, or the consequences of hostilities. I think that there was in this case a total loss by capture on the 26th February, to say nothing of the other words, viz., seizure, and so forth. That was the day on which the “Romulus” was seized, lawfully as appears by the subsequent condemnation. There was on that day a total loss, which, as things were then seen, might afterwards be reduced if in the end the vessel was released. Suppose that the “Romulus” had been insured against capture on a time policy, had been taken safe to Yokosuka and there condemned, but that the time policy had expired in the interval between the date of her seizure and the date of her condemnation. In such case, if the plaintiff's contention is sound, the very thing which the policy was designed to cover would have happened during the currency of the insurance, and yet by reason of the lapse of time in bringing her into port and obtaining a decree all recourse against underwriters would have been lost, and probably the owner could not have protected himself by further insurance, or, if he could, only by payment of a ruinous premium. A contention which in such circumstances might make the liability of underwriters depend not upon acts done at sea or their lawfulness, but upon the degree of expedition shown by a Court of Prize in adjudicating upon those acts, must surely be erroneous. If there were an appeal from the Prize Court which might not be decided for a long time, this observation would apply with increased force. I think that the reasonable and true way of regarding what actually occurred is that there was in fact a total loss by capture on the 26th February, though its lawfulness was not authoritatively determined till the 16th May following. Accordingly I agree with the order made by the Court of Appeal. And it would not be necessary to say more were it not that our attention has been directed to a decision of the German Supreme Court of Appeal, which proceeds upon an opposite view. It would not be consistent with the great respect due to that Court that I should offer any criticism upon its judgment, even if I felt myself competent, as I do not, to discuss German law. I can only say that, without in the least questioning the authority of that Court, I think that the law of England is as I have said, and I am of course bound to advise your Lordships in accordance with what I believe to be the law of England.Earl of Halsbury —By agreement between the parties—I suppose to a void a multiplicity of actions—the policy, which is actually a time policy for disbursements in respect of the ship “Romulus,” is to be treated as if for hull. It is for total loss only, and is warranted free from capture, seizure, and detention, and the consequences of hostilities. These are now quite familiar words, and give rise to no ambiguity, and the law is very clear that in this, as inPage: 695 ↓
Lords Ashbourne and Robertson concurred.Appeal dismissed.Counsel for Appellant— J. A. Hamilton, K.C.— Ernest Pollock, K.C.— Balloch. Agents— Woodhouse & Davidson, Solicitors.Counsel for Respondent— Scrutton, K.C.— Bailhache, K.C. Agents— W. A. Crump & Son, Solicitors.