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

Berry v. Salting [1847] NSWSupC 5

insurance, marine

Supreme Court of New South Wales

Stephen C.J., 20 December 1847

Source: Sydney Morning Herald, 21 December 1847, in Supreme Court Collection, Vol. 2, pp 43-44

BEFORE the full Court.


His Honor the CHIEF JUSTICE delivered the judgment of the Court in this case as follows:---

This was an action of assumpsit, to recover the amount of an insurance on the schooner Coolangatta. The cause was tried before Mr. Justice Dickinson; and, under His Honor's direction, a verdict was returned for the plaintiff.

The following are the facts. The vessel was insured for the term of three months, "while trading between Sydney, Newcastle, and Moreton Bay." There was, however, this clause in the policy. "It shall be lawful for the said vessel, in this voyage, to proceed and sail to, and touch and stay at, any ports or places whatever, without prejudice to the assurance." The defence was, (in addition to a denial of the loss, which however was clearly proved,) that the vessel had deviated from the prescribed voyage; and was, at the time of the loss, not "trading between Sydney, Newcastle, and Moreton Bay." The loss took place, within the three months, at the River Tweed;a place lying between Newcastle and Moreton Bay, and consequently not being one of the three places named in the policy. Of those several places, as is well known, Sydney and Moreton Bay are the extreme Southern and Northern points; and all the places mentioned are on the Eastern coast of this colony, Newcastle being the next port north of Sydney --- and both, consequently, to the southward of the Tweed. It was alleged by the plaintiff, that the vessel entered that river from stress of weather; and, by the defendant, that she went there intentionally, for the purposes of trade. However, the fact may have been, the vessel was at the time of the loss taking in cargo. But it became unnecessary to determine, for the purposes of this action, with what object she entered the Tweed, as his Honor told the Jury that even if the vessel had gone there expressly to trade, the insurance would not thereby have been invalidated. It was insisted that the only voyage insured was to one of the three named places, Sydney, Newcastle, and Moreton Bay; not a voyage between Moreton Bay and the Tweed, or Newcastle and the Tweed; ---and that the vessel had no right, under the subsequent clause in the policy, to touch and stay at other places, except for the purposes connected with, and subsidiary to the said insured voyage. But the Judge said, that this being a time policy, the touching at other places could not prolong the risk; and that, provided the place were within the extreme termini limited, the vessel was equally at liberty to trade there, as at any of the three places specified.

The propriety of that direction was brought under out consideration, on a motion for a new trial, during the last term: when the decision was postponed, in order that we might look fully into the cases---the point being a new one, and pressed on us as one of much importance. The defendant's counsel (Mr. Foster and Mr. Broadhurst) contended, that the vessel had no right to sail for any other place, than one of the three enumerated; and that, had such not been the intention, the introduction of the one intermediate port, Newcastle, was idle and useless:---that the liberty to visit other places, was for subsidiary purposes; not the independent one of trading; as was shown by the use of the words touch and stay at only --- which did not imply, or include, a leave to visit in order to trade there. It was observed, that the clause relied on was the common printed one, which might have escaped notice; but that the description of the voyage, to which clearly the attention of both parties was directed, as that which ascertained the risk, was introduced in writing. The learned counsel insisted, that this was not altogether a time policy; that the vessel was protected, only, while trading between the three ports named --- that is, from one, to the other or others of them:---but that, at the time of the loss, she was not in the course of any such trading; as she was trading between one of those places, and a place not named or contemplated:--- that the words "for any purpose," usually added after the words "touch and stay," were in this policy omitted; a circumstance supporting the construction contended for:---that the River Tweed might have been, and probably was, a dangerous place; and there were doubtless others, along the same line of coast, equally or more so---all of which were meant to be excluded, by the specification of the one place, only, between Sydney and Moreton Bay, (namely, Newcastle,) which the vessel was permitted to visit---that is, for trading purposes. On the other hand, Mr. Darvall for the plaintiff asked, if the vessel was at liberty to trade, at the three named places only, of what use was the permission to touch and stay at other places?---and, if she might touch and stay at other places, how was the risk increased or affected, (in a case where, as here, a certain fixed time was its duration, and not the time engaged in the voyage,whether more or less protracted,) by the vessel then remaining, and taking in a cargo?---Had she been insured for a voyage, or a certain number of voyages, every detention would have prolonged and therefore increased the risk. But, in this case, the coast being specified, and the limits along it which the vessel was not to pass, the particular spot at which she might be within those limits, and whether she went or staid there for trading or not, was immaterial. The time would equally run on, in any event. The leave to touch and stay at any place, (he maintained) necessarily included liberty to trade at that place; and there could be no reason, why the touching should be for any particular purpose.

The cases and authorities cited were the following:---1. Park Ins. 106 and 46.---Hughes, 202 and 205.---Solly v. Whitmore, 5 B. and A. 45; Raine v. Bell, 9 East, 195; Beatson v. Haworth, 6 T. R 531; Laroche v. Oswin, 12 East, 133; Violett v.Allnutt, 3 Taunt. 419; Lavabre v. Wilson, 1 Doug. 284; Bottomley v. Bovill, 5 B. and C. 210.

We have considered these cases, and several others; and I confess that my opinion, for a considerable time, was in favour of the defendant. I now, however, agree with my learned colleagues, that the direction and verdict in this case were right. My difficulty has been, first, the mention of Newcastle in the description of the voyage---an insertion wholly unnecessary, if every place between Sydney and Moreton Bay was meant to be included. I was struck, secondly, with the fallacy of the reasoning, that because trading no more increased the risk, (in a time policy,) than touching and staying, it thence followed that each was alike covered by this insurance. For it still might very well be, that nevertheless the defendant meant to insure a "trading," (for the term of three months,) only to the places named, or one of them; with leave to "touch" at other places within the assigned limits, for purposes connected solely with that trading. He may have known, or supposed, that very few occasions could arise, connected with trading to and from those three places, to induce a visit to any other place on the coast. He may have been willing, therefore, to incur the risk of such a visit, if paid---though perhaps to dangerous or unknown harbours,---because of the extreme imprudence of any such visit being paid. But, if the restriction to purposes connected with a trade to and from one of the specified places, did not exist, so that the vessel might go to any intermediate place, for purpose of independent trading, the risk was clearly different in degree, (whether more or less), from that supposed by him to have been undertaken. The character of her visiting intermediate places became greater; and consequently, if any such place involved a greater risk, from the nature of its navigation or otherwise, the risk insured against was greater. Such a risk the defendant might not have chosen to encounter. But, on a review of the cases, in connexion with the terms of this policy, I am of opinion nevertheless, with other members of the Court, that the plaintiff is entitled to recover.

The mention of the port of Newcastle, which is an intermediate place between Sydney and Moreton Bay, must be admitted to present a difficulty. But a policy of insurance, like other instruments, must be construed by the whole of the terms used in it; not one apparently inconsistent expression. Of this rule, many instances might be given; but it is one too well known to require illustration. The rule itself is explicitly so stated by Lord Ellenborough, in Robertson v. French, 4 East, 134. And, in Rickman v. Carstairs, 5 B. and Ad. 651, Lord Denman observes, (admitting that the assured in that case intended more, probably, than the words expressed,) that the question in these cases is, "not what was the intention of the parties, but what is the meaning of the words they have used."---Or, to express the same thing in other language, the intention of the parties is to be collected, exclusively, from the instrument which they themselves have pout forward as containing it. Now, here, the vessel was insured for three months, while trading between Sydney, Newcastle, and Moreton Bay; with liberty, in that voyage, to proceed to, and touch and stay at, any ports or places whatsoever. We are of opinion that, under the circumstances, these words (the construction of which is the province of the Court, see 4. Taunt. 511,) must be taken to mean, that the trading insured was one within the limits specified; but that within those limits, the vessel might trade at any place. It is plain, that full effect cannot be given to all the words; for, notwithstanding the expression "this voyage," one voyage only was certainly not in contemplation, but several voyages. Along the line indicated, the vessel was to be engaged, clearly, in coasting; and whether for one voyage, or many voyages, (within the period insured,) was obviously immaterial. It will hardly be contended, that she was bound to proceed to Newcastle in her progress either from Sydney or Moreton Bay. Yet such would be the literal construction; if that were the rule adopted. Then, if she were so restricted, or her voyages were to be from and to those ports only, (or from one to another of them,) for what purpose, connected with any such voyage,could it be supposed that she would ever have occasion to touch at the Tweed? The words are not, however, that the vessel is to trade to and from the three ports specified, but simply between them. Now the River Tweed, it is true, lies between Moreton Bay and Newcastle. It is nevertheless true, that it lies between Moreton Bay and Sydney --- or literally, between Sydney, Newcastle, and Moreton Bay. The vessel, therefore, strictly and in terms, at the time of the loss, was trading between the places prescribed for her.

But, it was insisted, the trading was to be to and at those places only; and she had leave to touch, merely, at others---the clause being simply introduced, to excuse a deviation. To this, there are the following answers. Usually, no doubt, the voyage is defined; and then, in terms more or less extensive, a liberty to deviate is given. In such cases the general rule is, that the purposes of such deviation must be one connected with, and subsidiary to that voyage. To deviate for an independent purpose, would be to vary the risk agreed on; and, for that reason, would avoid the contract---whether the risk were increased by the act or not. (See Mount v. Larkins, judgment of Lord C.J. Tindal, 8 Bing. 122.)---But, admitting that it is immaterial, therefore, in this case, whether trading in the Tweed affected the risk, in point of fact, bearing in mind that the policy was one for a stated time, no adequate reason has been shown why the vessel might not trade at a place not named, if she might touch and stay there. The leave is not, merely, that the vessel may touch at any such place; but that she may sail for, and stay at it. But, if she could not take in a cargo, for what purpose would a vessel spontaneously go there? She would not be likely to go for the purposes of amusement; and for those of necessity, no leave was wanted. For the purposes of a voyage from Moreton Bay to Newcastle, or Sydney, she could not be expected to touch at the Tweed for information. And, if she did touch there, but could not trade, why should leave have been given for her not only to touch but to stay? The cases ofViolett v. Allnutt, however, in 3. Taunt. 419, and of Barclay v. Stirling, 5. M. and S. 6., are authorities for the position, that an intermediate port may (where the words admit of that construction) be considered part of the voyage insured; as much as thetermini themselves. And, in Metcalfe v. Parry, 4. Camp. 123, Lord C.J. Gibbes held, that a voyage "at from Antigua to London, with liberty to call at all or any of the West India Islands, Jamaica included," was a trading or seeking voyage; for the purpose of taking in goods, though the leave given was, in terms, to touch only at those places. Words are so construed, therefore, as to effectuate the intention, where the general scope and terms of the instrument will enable the Court to collect it. And, as it appears to us that the object here was a trading voyage, or rather a series of such voyages, along the eastern coast, between two defined termini, for a specific period, we feel bound to give effect to that object; without limiting the right to trade, (in the absence of express words limiting it,) to the one intermediate place contended for.

The verdict in this case, therefore, for the several reasons now given, will not be disturbed.


Stephen C.J., 21 December 1847

Source: Sydney Morning Herald, 23 December 1847, in Supreme Court Collection, Vol. 2, p. 45

In this case, (the judgment in which was delivered on Monday), the CHIEF JUSTICE said that the Judges desired to add a few words as to a portion of the Judge's charge to the Jury, which had been commented on. His Honor continued as follows:---

It will be collected from what has been said, that we think the Judge's observation warranted, respecting the right of the vessel to trade along the coast, within the limits prescribed, in any direction; and without reference to the order, in which the three ports named are enumerated. That is, we are of opinion that she might have gone from Sydney to Moreton Bay, for instance, without entering Newcastle; or, having gone to Newcastle, that she might then return to Sydney; and, in short, was at liberty to trade backwards and forwards, within the limits mentioned, at discretion. In the insuring of a particular voyage, the underwriter must reasonably be understood to mean, (unless words distinctly implying the contrary be used), that the vessel shall traverse the space within the shortest practicable time. But there can be no such reason, for so construing a policy insuring a vessel, in the same voyage, for a specified period of time. In the latter case, therefore, if there be a liberty given to deviate, to certain ports named, the Court had no ground for inferring that the order of visiting those ports, (which would not affect the duration of the risk,) should be material to the insurer, or was consequently in the contemplation of either party. In the case of a voyage policy, merely, the order in which the ports is named, is obviously (or may be) most material; and may be presumed, therefore, to have been a matter stipulated for, as tending to shorten the period of risk. Therefore, if the order named be the geographical one, it will be inferred that this was designed to be followed; as naturally being that, which induced the quickest termination. On the other hand, if that order be inverted in the policy, it may be supposed that a reason of the same kind occasioned the alteration. In each case, it has been held that the order named must be pursued. It is clear, that in the former case, the order must have been meant to be pursued. In the later case, simply because the order is unusual, a reason for the inversion may be presumed. But, in a time policy, nothing exists to show any reason for their being visited in one order, in preference to another, and therefore we need not hold that such was intended by the words used.

Published by the Division of Law, Macquarie University