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Decisions of the Superior Courts of New South Wales, 1788-1899

Tooth v Campbell [1835] NSWSupC 80

insurance, marine - customs and usages - whaling

Supreme Court of New South Wales

Forbes C.J., 9 October 1835

Source: Sydney Herald, 12 October 1835[ 1]

Friday, Oct. 9. - Before the Chief Justice, and Messrs. Manning and Perry, Assessors.

Tooth v. Campbell and others. - This was an action brought by the plaint[i]ff, a merchant and shipowner of Sydney, against the defendants, Directors of the Australian Marine Assurance Company, to recover the sum of £210, under the following circumstances:- The plaintiff is owner of the whaling ship Sir William Wallace; and wishing to effect an insurance upon her for her last voyage, he communicated with the Secretary as to the terms, giving the usual information as to her outfit, which was stated to be ample, with provisions on board for eighteen months; at the same time enquiring at what rate of premium would a policy be renewed, should it be found necessary to extend it.  Plaintiff was informed by the Secretary to the Company that the terms were, 8 per cent. for 8 months, 10 per cent. for 12 months, and 12 per cent. for 15 months, or for a longer period, with a drawback of 4 per cent. if the vessel returned to port within 12 months; of 2 per cent. if within 15 months; but if she remained at sea beyond that period, then no return to be made.  With respect to the enquiry as to the renewal of the policy, the Directors would give no information at that time, as any arrangement of that nature depended on circumstances which could only be considered at the time the extension was about to be effected.  Plaintiff effected the assurance, and the vessel proceeded to sea; but after having been out about 15 months, during which time she was unsuccessful, and it being necessary to keep her out some time longer, plaintiff despatched a vessel with eight months provisions to meet her at the Bay of Islands.  Intelligence of this circumstance having reached the Underwriters, the Secretary demanded an explanation, informing plaintiff that by the act he had vitiated his policy.  The result, however, of the correspondence was, that the policy was extended upon plaintiff's paying an additional sum of £210, the sum now claimed.  Subsequently to the latter transaction, plaintiff availed himself of legal advice and was informed that the latter payment was unjustifiable and unnecessary, the original policy extending over her whole voyage; plaintiff therefore brought his action to recover the additional sum thus paid.  On the part of the defendants, it was contended that the policy had been effected entirely under the representation made in plaintiff's letter, which set forth that the vessel was victualled for eighteen months, and it was therefore supposed by the Company that her voyage would extend to that period only, and the risk was calculated accordingly.  A number of gentlemen, conversant with the usages as to maritime assurance in London, and in this Colony, were examined, occupying the whole of Thursday and Friday, when the case being put to the Assessors, they returned a verdict for the plaintiff.



[1 ] See also Australian, 13 October 1835, stating that the verdict was for the £210 claimed.  The Australian commented on the case in its editorial pages on the same day.

Published by the Division of Law, Macquarie University