Skip to Content

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

Simmons v. Lamb [1840] NSWSupC 69

insurance, marine, ships, seaworthiness

Supreme Court of New South Wales

Dowling C.J., 28 October 1840

Source: Sydney Herald, 30 October 1840 [1]

[Before the Chief Justice and a Special Jury.]

            SIMMONS v. LAMB. - This was an action on promises brought to recover the sum of £3200.

            In this case Mr. Isaac Simmons was the plaintiff, and the Sydney Marine Life and Fire Assurance Company the defendants, who were sued in the name of Mr. John Lamb, one of the directors of the said Company.  The cause of action was as follows:- On or about the 26th of January, 1839, the Company insured the brig Alice, Captain Haynes, for £2000; she was then lying in Port Jackson, ready for her voyage, bound for Manilla, with liberty to touch at Norfolk Island, and to proceed thence to Manilla, and to return with a cargo to Sydney.  About six months afterwards, the same Company also executed another insurance for the sum of £1200 on the freight of the same vessel from Manilla to Sydney.  The insurance on the vessel was taken at six guineas per cent., and that on the freight at two guineas and a half per cent., amounting in all to £157 10s.  Before the Alice left Sydney, and before her insurance was effected, the Company's Surveyor inspected the vessel in order (as the defendants alleged) to see that she was properly found and manned.  After leaving Sydney with a partial cargo of coals and salt beef, she proceeded to Norfolk Island, where she beat about for nearly three weeks, during which time she was very much strained by tempestuous weather, her topsails having been blown away as well as her mainsail.  She afterwards proceeded on her voyage and arrived safe at Manilla, where a partial survey was held on her, and a series of repairs given her.  She then took in a cargo of Manilla rope, cigars, and sugar for Sydney, and commenced her homeward voyage, when she encountered some squalls between Manilla and Cape Bajadorand; while off that point and making for the Bashee Group; about a week after she had begun the voyage, it was discovered one morning that she had sprung a leak, and was making water at the rate of four feet an hour.  The Captain and those on board held a consultation, when it was determined to return to the port they had left, which they were enabled to do.  After they had returned to Manilla, Captain Metcalf of theFrances Charlotte, and the Captain of another British ship went on board at the request of the Captain of the Alice, and finding that the vessel was still making water at the rate of four feet an hour, they signed an opinion that it was requisite that the vessel's cargo should be discharged, in order that a proper survey should be held upon her.  After which she was taken up the river at Manilla, stripped and a survey held on her by a number of British Captains, who condemned her as not being seaworthy, after which she was sold by auction, to the chief man in the island for two thousand one hundred dollars, which produced £562 10s.  It did not appear that any official report of the survey had been forwarded or received by the owner, the plaintiff in the present action, who brought it to recover as for a total wreck, giving the defendant credit for the proceeds of the sale.  He claimed as for total wreck, on the ground that she had been rendered unfit for sea by the stress of the weather she had met with during the voyage, and also because the vessel had been inspected by the Insurance Company's Surveyor, prior to her leaving for Sydney; and, besides, if the vessel was not sea worthy when she left Sydney, as the Company could have no risque, therefore the Company was bound to have returned the premium, which had not been done, besides after the vessel had been condemned, it was proved that she had been repaired by recaulking and chunaming her bottom; it was therefore insinuated that she was not unseaworthy, but being condemned the plaintiff was entitled to recover, especially as one of the witnesses for the plaintiff, the mate of the vessel, during her last voyage when she was condemned, had sworn that in his opinion it was a shame to condemn her, as she might have been repaired, and that although there might be a few bad planks and timbers in her, yet she was a good vessel, and if her lining had been repaired, the vessel stripped, recaulked, and properly repaired, she might have safely made the voyage back to Sydney.

            The defendant refused payment on the ground that at the time the insurance was effected, the vessel was not sea worthy, and from her cargo being in when the insurance was effected, the Surveyor had not an opportunity of examining the condition of the vessel.  It was also proved by the carpenter of the vessel, that she was in a rotten state; so much so that a number of her planks beneath the copper were quite decayed, that had he been aware of the state of the vessel when he left Sydney in her he would not have gone the voyage; he proved that the leak had been occasioned by a rotten plank in the quarter, which he managed to get at by cutting away one of the timbers, and then driving in plugs with oakum; when the vessel was stripped she was found in many places to be rotten, worm-eaten, and decayed; the keel was also unsound as well as many parts of the lining; it was also shown that such was the feeble state of the vessel, that she always made water, and that during the whole voyage she had not encountered any weather that was calculated to injure her, had she been sound when she left Sydney.  The Captain had called her "an old rotten tub," and had he not got her back to Manilla it was his determination to have beached her, in order to have saved the lives of those on board.  It was also proved that the long boat was unfit for service, having a hole in her bottom, besides being rotten.

            Mr. Foster for the plaintiff, contended, that the Insurance Company were to blame by insuring the vessel without being satisfied of her being in proper condition for the voyage, and urged on the Jury that his client had been hardly dealt with by the company, who had injured themselves by not paying within the stipulated time the whole sum insured, but he subsequently admitted that all his client could legally claim was £200, being the amount of damage which the vessel was proved to have sustained on the high seas.

            Mr. A'Beckett for the defendant, contended, that although the vessel was not sea worthy, yet as they had the risk of her from the time she lay in harbour after the insurance was effected, and had also the risk of her while she lay at Manilla, therefore the plaintiff had no claim to have the premium returned, and as to the survey made in Sydney Cove, it was done in the usual way, and the owners by applying to have her insured had guaranteed that she was sound and not unseaworthy.

            His Honor in putting the case to the Jury, stated, that it was one of the few insurance cases which had ever come before the Court; that in London such actions were very prevalent, and by some means or other the resisting of such actions had become so unpopular that there was good reason for believing that most of the offices submitted to gross imposition and paid losses for which they were not at all liable, rather than subject themselves to the odium which had been attached in the public mind to resisting the claims of insurers.  He also stated that there was good reason to believe that when British ships were surveyed in Foreign ports, there was for some reason or other a general inclination to condemn them, on what might be regarded as light grounds.  He also told the Jury that the law in regard to the insurance of vessels was similar to that in regard to the insurance of lives, the insurers applying being prima facie evidence that what was to be insured, had no latent or hidden defect in it, and if it should turn out that death or loss was caused by any hidden cause, such as had been alledged in the present case, then the insured was to suffer and not the insurers, at the same time they had been properly told, that there was not legal evidence to entitle the plaintiff to recover for the vessel or the freight, but they were to consider what injury a seaworthy vessel circumstancsed, as the Alice had been would have sustained, and by that estimate their damages, if any, to which the plaintiff was entitled.  The Jury returned a verdict for the plaintiff - damages £200.  His Honor certified for a Special Jury.

            Counsel for the plaintiff, Messrs. Foster and Broadhurst; Attorney, Mr. Norton.  Counsel for the defendant, Messrs. a'Beckett, Darvall, and Windeyer; Attorney, Messrs. Carr and Rogers.

Notes

[1]              See also Australian, 31 October 1840.

Published by the Division of Law, Macquarie University