LOSS OF THE DUCO

Evening Post, Volume LXXIX, Issue 110, 11 May 1910, Page 7

LOSS OF THE DUCO

IMPORTANT INSURANCE CASE. I SUPREME COURT ACTION. i In the Supreme Court to-day, befor* his Honour Mr. Justice Chapman and a special jury, an action arising -out of the loss of the steamer Duco was heard. The Wellington Harbour Ferries, Ltd., were plaintiffs and the Corporation of the Royal Exchange Assurance Company were defendants. The claim wju for £500 on a policy o£ insurance on the steamer. The decision in this case will affect a number of insurance claims. The following are the names of the special jury :— J. G. Dalrymple (foreman), C. H. Dickerson, W. E. Hughes, E. Salmond. E. D-Caehemaille, C. A. Innes, H. Little*john, E. Larcomb, W. F. Healy, J. W. Callaghan, J. Leonard, and W. H. Coy. • Mr. C. P. Skerrett, K.C., with him Mr. F. G. Dalziell, appeared for plaintiffs, and Mr. J. H. Hosking, K.C., (of Dunedin), with him Mr. A. A. S. Mentcath and Mr. W. H. D. Bell, for d* fendants. STATEMENT OF CLAIM. Plaintiffs, in their statement of claim, set forth :—: — 1. Plaintiffs were the owners of th« ship Duco at the time of its loss. 2. On the 27th July, 1909, at Wellington, the defendants, in consideration of £25 paid, executed a policy of insurance upon the said ship, whereby, the defendants promised to pay to plaintiffs three months after adjustment of loss, all loss and damage accruing to the plaintiffs by reason of the destruction or injury of the^aid ship while trading from Wellington 6Y other saf» ports in New Zealand to Chatham Islands and back during the period from 27th July, 1909, at noon, to 27th July, 1910, at noon, whether by the perils of the sea or other causes therein mentioned, not exceeding £500. 3. That the said ship, while proceeding on the voyage from Wellington to Chatham Islands, was, on or about the 7lh September, 1909, totally, lost by the perils of the sea. 4. Plaintiffs' loss thereby was £4000. (5) Plaintiffs duly performed all tht conditions of the said policy on their part. i (6) Plaintiffs have demanded payment of the said sum of £500, but the defendants have repudiated all liability under the said policy, and have refusea to pay the sum. of £500 or any part thereof. Wherefore plaintiffs claim (a) the sum of £500; (b) interest at 8 per cent, per annum on £500 from 7th September, 1909, to the date of judgment; (c) costs of this action ; (d) ; such further or other i reJief as to the court seems fit. STATEMENT OF DEFENCE. Defendants submitted the following statement of defence :—: — (1) They admit all the allegations contained in paragraphs 1, 2, 3, 4, 5, and 6 of the statement of claim save and except (a) That it appears by the policy of insurance stated in the statement o£ claim that the insurance thereby effected was against total loss only and save and except (b) that the plaintiffs did not duly perform the conditions of the said policy as to seaworthiness. (2) Plaintiffs did not perform tho conditions of the said policy as to seaworthiness in that before and at the time of the departure of the ship Duoo from Wellington on the voyage on which she was lost, and at the time of ,her loss, was not seaworthy, and in particular by reason of the matters followinc : (a) Upon the deck of the said ship ta» plaintiffs loaded a large quantity of bagß of cohl, and also concrete blocks and timber, an additional boat, and a larg* tank containing water. (b) The said coal and the said other things so loaded on^deck were not Jashed to prevent their shifting, and the effect of the mattera averred in sub-paragraph (a) and (b) of this paragraph was to render the said shin unstable and therefore unseaworthy,

v and -also to interfere with the steeringgear, aud thereby to render her unseawoefchy, and also to prevent the escape through wash-ports of seawater, and thereby to render the said ship unseavwrthy. (c) The said ship was- overloaded by the plaintiffs with a cargo of coal and other material exceeding her eafa' capacity, and was thersby rendered bo deep in the water as that she was tendered unseaworthy. It was agreed that as the issue as to seaworthiness rested on defendants, they should start the case. ' Mr. W. H. D. Bell, in opening the case for defendants, said the Ferry Company insured the Duco with various insurance offices for sums totalling £2500. The present claim was against one company for £500. This would be the first of the claims to be heard. The underwriters disputed liability to pay for the total loss of the steamer on the ground that the Ferry Company was guilty of a breach of warranty in sending the Duco to soa in the condition in which she went. The underwriters said it was a condition of the policy that the ship should go to sea in a seaworthy condition, and they alleged that she was not sufficiently seaworthy when she left Wellington to meet the ordinary perils of a voyage to the Chathams. Mr. Bell then dealt at length with the question of what constituted seaworthiness, and quoted authorities on the point and decisions given by courts in previous cases. If a boat was overloaded or improperly loaded, he said, she would be unseaworthy. He contended that tho Duco was improperly loaded on deck on leaving port. The extra loading made her top-heavy, increased her draught, and prevented her clearing herself of seawater through her wash-ports. Defendants could not impute to the manager of the Ferry Company any intention to send the ship to sea in an unspaworthy condition, but • the company employed a captain, and was responsible for his acts. The cantain took the Duco to sea without obtaining the necessary permit to carry deck cargo. He started before the apEointed time, and he left his papers beind. Mr. Skerrett said there was no allegation that the Duco was unsuitable for the voyage on which she started. The other defenco of unseaworthiness was limited to two matters : — (1) that having regard to loading of the ship she was not a stable ship, and (2) that she was laden to a draught which was unsafo. Those were the two points in tho ' pleadings, and defendants were confined to those two points. It was not con- • tended that tho Duco was not a suitable vessel for the voyage. • Mr. Hosking : That is involved in the defence that the boat was not in a seaiworthy condition, which is a general defence. Mr. Sfkerrett: Not at all. A ship might be unseaworthy because she was not of a c?a6s, size, or equipment to make such a voyage. That was not suggested in this case. A vessel might be unseaworthy because*her stability might be detracted from. It was not open for defendants ori the pleadings to contend that the Duco was not a suitable vessel, v if suitably loaded, to make a voyage to the Chatham Islands. Why that observafcioii was of importance was this : "because it was contended that the Duco ivras in the position of a ship as to which ii was the duty of the owners not only to make her seaworthy, bufc to do everything possible to make her eeaworthy. The suggestion in defendaztte' counsel's opening remarks was that the Duco was a vessel that was not suitable to make a voyage to the .Chathams, .and that it was the' duty or . the owners to do everything possible 'to 1 make hor 1 suitable to go to the ChdC- - tains. His Honour : I .will not determLne'that point at the present juncture. Henry Charles Guthrio deposed 'that he loaded the Duco with coal from »! c hulk Errol. He put 16i tons of coal aboard — about 10^ tons on deck. Up in the time witness last saw the coal-bags on deck, thiey were not fastened in any way. It was usual to put lashings on deck cargo. On resuming this afternoon witness said he noticed a tank on the deck of the Duco aft, also some battens for boxes in bundles, on the bridge deck. He saw the Duco go out. She was deeply loaded. He would not have gone to sea in her. In his opinion, she would have had "no show" in bad weather. It would reqnire two men ab least to pick up the bags of coal at sea and pitch them overboard if it had! been found necessary to do that. To Mr. Skerrett: There were 50£ tons of coal low down im the ship. (Proceeding.)