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

Porter v. Jones [1839] NSWSupC 45

insurance, marine - ships, seaworthiness

Supreme Court of New South Wales

Stephen J., 5 July 1839

Source: Sydney Herald, 8 July 1839[1] 

Friday -- Before Mr. Justice Stephen and a Special Jury.

Porter v. Jones. -- This was an action of assumpsit, brought against the Australian Marine Assurance Company, to recover the amount of a policy of assurance on the brig Alice.

It appeared that in June last, Mr. Porter insured the brig Alice for £2000, against the perils of the sea, on a voyage from the Mauritius to the Cape and thence to Sydney.  On the 27th March, the Alice sailed from the Mauritius, and arrived at the Cape on the 19th April.  While lying at anchor there in June, there was a very heavy gale of wind, during which she parted from her anchors, and was supplied with another, by which she hung until the storm subsided; a few days afterwards there was a second gale, after which the Alice became so leaky, that after several Boards of Survey had been held on her, it was considered necessary to take out the cargo, and she underwent very extensive repairs, and the total amount of her expenses was £1044, 11s. 9d., which was the sum that the action was brought to recover.

From the log book, the protests, the surveys, and the de bene esse[2] examination of Haines, the master of the vessel, it appeared that directly after the vessel had left the Mauritius, she leaked so much as to require pumping every two hours, but that she landed her cargo of sugar dry; that after the second gale she became very leaky, making from ten to seventeen inches water per hour, and that some of the planks taken out were rotten and worm-eaten.

The defence to the action was, that the vessel was unseaworthy, and that consequently the policy was not binding on the company.  The cable and anchor which was lost in the first gale, the company considered themselves liable for, and accordingly had paid £136 3s. 8d. into Court, which, as the vessel was also insured in the Union Company, was the Australian Company's average of the loss.

The de bene esse examination of two seamen, set forth, that the cable which parted in the first gale, was not a good one, that it was rotten, and was composed of different sized chains joined together; that many of the planks taken out were worm eaten and rotten, and crumbled in the hand like snuff; that the treenails were so loose that they started with a blow from a common mallet.  Mr. W. Carter, of George-street, for many years a ship-master, stated that from what he had heard, he was of opinion that the planks must have been rotten when the vessel left the Cape; they could not have got into that stated during the voyage; she could not have been sea-worthy.

His Honor said that if the company meant to rely upon the unseaworthiness of the vessel, they ought to have paid the amount of the premium into Court.

Mr. A. Wilson was then called to prove that the cargo of the Alice was insured in the Union Company; but his Honor declined admitting the evidence, as he did not consider it a case for average; it is only extraordinary cases that are cases for average; but when the damage is in the ordinary performance of the voyage, such as sails being blown away, or cables broken, the damages must be borne by the ship and her insurer; a ship being like a tool, and if, in the performance of the work, the tool is broken, there is no remedy.

In reply, the plaintiff called Mr. D. Egan, who proved that the Alice got aground at Newcastle, and was repaired by the Assurance Company, at an expence from £1000 to £1200; he watched during the time the repairs were being performed, and saw no unsound plank, she then made one voyage to Launceston, one to Hobart Town, and one to Manillla [sic] and China, when he sold her to the plaintiff for £2400; he then believed her to be sound.[3] 

His Honor, in summing up, said there could be no doubt that the vessel was injured in the course of the voyage, and the first question for the Jury would be, whether the damages was incurred through the perils of the sea, against which the vessel was insured.  It was contended that the injuries sustained in the second gale were not by the perils of the sea, but were the result of the rottenness and worm-eaten state of the vessel, and if the Jury considered that the injuries were the result of the worms or rotteness, the defendant would not be liable.  If, however, at the commencement of the voyage the vessel was seaworthy, and during the voyage the worms injured her, and the perils of the sea were the immediate and the rottenness and worms the remote cause, the defendant would be liable.  The actual question was, whether the vessel was seaworthy or not -- and if that were found by the Jury, and they also found that the damage was occasioned by the perils insured against, the verdict must be for the plaintiff for such parts as they considered occasioned by the storms.  If the vessel was not seaworthy at the commencement of the risk, although the plaintiff did not know it, still it would not be binding upon the defendant.  The Jury retired about five minutes, and returned a special verdict that the vessel was not seaworthy at the commencement of the risk, and they therefore returned a verdict for the plaintiff, damages £43 17s. 4d.; being the difference between the money paid into Court, and the premium paid on the policy.  A point is reserved for the decision of the Court, whether the defendant, having paid money into Court, had not admitted that the vessel was seaworthy.

Counsel for plaintiff, Messrs. Foster and Windeyer; for defendant, the Attorney-General, and Messrs. a'Beckett and Broadhurst.



[1]  See also Sydney Gazette, 9 July 1839; Australian, 9 July 1839.  See also Australian, 22 October 1839 (court refused to allow the restoration of the cause to the paper).

[2]  As being good.  Provisionally acceptable evidence, subject to the further examination of a witness who was ill or about to leave the colony.

[3]  At this point, according to the Australian, 9 July 1839, ``His Honor over-ruled the question of average, as he did not consider the present to be a case which came under the operation of average, which could only be claimed in extraordinary cases; when the damage was in the ordinary performance of the voyage, such as sails being blown away, or cables broken, the damage must be borne by the ship and her insurer."

Published by the Division of Law, Macquarie University