Life insurance claim disputed

Press, 22 April 1977, Page 5

Life insurance claim disputed

The widow of a New Zealand victim of an air crash off Tahiti in 1973 claimed $lO,OOO from her husband’s insurer in the Supreme Court in Christchurch yesterday. Mrs Jean Faircloth is claiming the money from the Albion Insurance Company, Ltd, for the death of her husband. Captain Nolan Wentworth Faircloth, who was killed when the Pan American Airways Boeing 707 in which he was a passenger crashed in the sea off Papeete on July 23, 1973. The hearing was before Mr Justice Roper, who reserved his decision.

Captain Faircloth, who was a pilot with Safe Air, Ltd, was on a month’s leave and was accompanying his daughter Celia Jane Faircloth to England for her to further her horse-riding experience. There were 79 persons on! board the plane when it crashed shortly after take-off and only one person, a Canadian man, survived. The court was told yesterday that Captain Faircloth had taken out an off-duty insurance policy for $lO,OOO for the loss of life. Mr R. A. Young, for the defendant company, said that the company should not pay because Captain Fair-] cloth had breached one of the conditions of the policy. The arguments presented at the hearing surrounded the interpretation of this clause. It said: “The insured shall give written notice to the company of any intention of the insured person to travel beyond the limits of the Commonwealth of Australia, the Dominion of New Zealand and the intervening seas.” Mr Young said that because the insured had not given such notice he was in breach of the contract and his widow had no claim on the $lO,OOO. Mr A. A. P. Willy, for the

plaintiff, conceded that no] written notice had been] given. His prime submission, I he said, was that giving the’ words of the clause their strict legal meaning, the result was one of total confusion as far as the insured was concerned. He said that taking the legal definition of the Commonwealth of Australia and the Dominion of New Zealand it was impossible to give any sensible meaning to (the policy because so many seas lay within the definition. Counsel submitted that the Pacific Ocean was one of the ■ intervening seas, as were the Tasman Sea and the Indian Ocean.

“If your Honour is to restrict this cover to some part of the Pacific Ocean, to what part of the ocean would your Honour restrict it to?” said Mr Willy. ] He said that if the Court went outside the strict legal definition of the territories, then it embarked on a voyage of discovery that could lead anywhere. Mr Willy used large maps of the Pacific Basin to bring his point home to the Court. For the defendant, Mr I Young said that the answer i lay in the giving of a com-mon-sense and thoughtful | interpretation to the words in the clause.

I “In no way can Tahiti be conceded as being in the ‘intervening seas’,” said Mr Young. He submitted that this meant the Tasman Sea, and perhaps the lower part of the Pacific Ocean contiguous to the Tasman. Mr Young said that Captain Faircloth’s intention to travel beyond the limits of the defined policy must be presumed from the fact that he was aboard an aircraft in the middle of the Pacific. “As an airline pilot it was hardly likely that he was aboard the wrong plane, going the wrong way.”