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i:_?? % _ _LA?/ _

f j \; rv ^SUPREME CO.TJRT.r-THunsuAY.

, , i"".! , SITTINQS LY BANCOÍ '

?Barons the-Chief'Justice nnd-Mrr-Justiee-Dicklnson,

WILLIAMSON V' 'TIIR'NRW'SOUTH WALES MARINE. :vn*1i -:U ?'? ' ASsunANCB.'COMrAKY, ill!; MI.IS r.O

' - -This was a dèmurrcr toHwo pf ;défontTarit's'^plèas ta ,a Buit upon ¡a time.poliby.'.It had.be.e^^^

? ÍÓn'iii ptrtyioÜSjddy..: . ,-> j:.\;;.'.* ? M'^A

i Tho'' 'Attorhoy- General¡ ' Mr. ;-Meyiñott, r>áñd-''Mr. Martin appeared for the plaintiff ; arid 'tho'SolicUor 'Geñorál lind Mr. Stephen for tho defendants.'"The de- murrer,.however, was,argued by tho Solid tpr.Qfineral ''ÓÁd.AIr.:.M¿rtin,i'..V.'' ¡,. ?. . :,'..'.<( M.'. -¿ SS'y¿n

The policy of insurance was effected 'üpon a'VéBsel called tho Selina for £2000, and was "tö ruff"fronx thc 11th of. Deicmber, 185-1, tolOth June, 1855> and the declararon averred that cha was lost on^the ; 28th^ohruary, 1855rby, the. perils of the ,sea.¡ ' There was tho-usuatclaiiso in thclpolicy, that'it shpuld-Kave the sahib e'ffdct'n'nd .operation! as if; made in' tbíhbárd streeí, or atíhéRoyal Excnánge, London, &'c. ^--The , breach declared upón'vyaS.á refusal -lo,.pay .Üia¡£2000 1 which the Vessel Was 'insured for. ' Thi'ro'.'.jwiéej aa

already stated, two pleas.demurred to. - The.Ar^t of these' was ip the effect !that at; tho timé pf milting the , .contract thc défendant ^prqmised, a:accqrdin¡t, toi the i ,ciistoin, of persons ,, brigaged, in eJÏebting.marine»in-

surances '.atj Sydney, that tho .vessel was séâwo'rjjiy } and that, in consideration ¡of this promis,^ the¡ defend- ants, made, the .contract, yvhereas. çhe was not-, at-the ,. vtimé iù. a iBeaagrthy . condition. Tho effect' pf, tho ' sec'ond'plea w,»B'*'th.at ,tlie yess^.^msniui^ro'äyön'rlier

.voyagé. :no more than', tho .. ordihary'n^co- of tho' winds and'waves,- which, i had 'shfV-içeen seaworthy, would, not have injured her ;- butrthatïri consequence of her condition, and of its being' found that the cost of repairing her. in the foreign port being greater than her, yalu?, it -was found-meeessary to abandon her.- Consequently, that, tin's was not an ¡actual but a constructive logs,..\yhich;did not come within the : scope of the policy. - ' n- "? : ' .,';'MiíOOíí

The flrst-mcntionod plea was "demurred to.h'B setting > -vp i hew con'trhet by parol against Uh tt' cohiafherl in

the policy.,. The o^her pina was demurred . tf}''tinon, the ground that the facts set out amounted fball'y^to a-ioss by perils of the sea, and consequently disclosed no

matter of defence. ''"''" .

' -The argument in support of the d-nniirtvr öpon' the firat'of these griunds.wenf,' necessarily,-to'1 tho extent of re-jtypening' a: question; .tin which thb';.Cpïirt;^nad : already decided] the" other ;way-namely,' as the

existence 'of dh implied warran try ¿iji , t jme. policies ; that decision, hàvin'g'bcén tluí.there Voa«. suck an ' im- plication. ... But this re-opening of the .q^ostioiv.jwas justified by counsel and" permitted hy.-their,Hoftors, upon the ground that thefe had been two recent;:deci- sions in Queen's Bench in favour of thé prtnciple'-now contended for.-. >:^These'.cnses'.'-were Thompson v. Hopper, 20th Jurist, 608 (decided on. the 28ra Feb ru'ary, 1856), and-Forcus v. Sarsfield,''ucci'ded'^n the

same, dav, ' and reported in .the ' same .' volume of

the Jurist, p. ' 665; ' The effa'-.t' pf. "'bdtjr.'these cases-Wis to determine -that, accptding^to'thc opinion of tho Judges who ,decided them, tlierc was^np.war 'rantry of seaworthiness, implied ,by law- ih ia;,,{ime policy., It,was shown, too, in thecoursa of thtë argu- ment, that a .similar opinion had been cxptessedoy the judicial Committee of tho- Privy Coiiridili'- al- though they had not heen, called upon to y decide this , question.. Besides, reliance upon, those decisions, it

was contended that tho promise by local, custom could not bo set up, because it had been hero Biipula'ed'that the contract should be interpreted upon tho same prin- ciples ; as if, made , in England, - and ,.'.|conse quently governed by-English, law. : Thus,,iu»les8 the , .custom ,,was ..one which prevailed: in , England tuso-pf which there) was , nb avçrmènt-it

must be held that (as decided by the cases,already , ci'.ed) there was here np implied v?arranOy pf seaworthi-

ness ; and the promise as pleaded, even if iticOûld be sustained, was not sot np ns a part of the contract it- self, but as, a separate and distinct-promise, which ahould.be made the subject of a cross-action.,-¡As to tho other plea, it was contended that it was.notfot the Court to .judge,pf tho force and effect of "penlsof the seas it was quite possible' that, Vis averred in this , ,plea,-the Vessel might not have cncountered:any perils

which would have affected her had. .8he::i'Jbeen thoroughly sound; , but there being .'no-. war- ranoy, expressed or implied, -, of seaworthiness, it was sufficient that the perils.o'f . the sea, however slight, were tho proximate causa öf 'her loss. Several cases were cited in support pf ''this1 ar- gument.. .;, - ... -, .'. . I.

On the other hand, it was contended that the effect of the English oases already mentioned, was': only to decide that a warranoy bf seaworthiness did not exist in .time policies hy legal implication ; andi that, if the importation Of such-a warranoy by loc.il custom was relied upon, it must be specially pleaded, as had been done.here. Tho words relied upon oh thu.other side, ' as, subjecting the contract to. tho some -rules as if :made.'in'.;Lorabard-str6et, &e., were.\taere words of form, ??which could have no speéial'offect given to them. The proof of a promise' implied by tho custom of the place where the contract^w^Sinade, would hot amount to a 'variance of the contract, but merely, toithe addition of an' incident to it whicji did .not'appear upon ; its surface. The effect of the.other plea was not merely that the original default of send- ing the ship to sea in ah - unseaworthy state wa.s tho cause, of ..her Joss ; it admitted, in fact, bj';this_plea, that the policy had taken effect, notwithstanding this unseaworthiness, but- it went"lon" to aver that the vessel'hod1 been lost in consequence of urisoundnéss ;avicb; of the thing insured-and :not of hhy'of'the 'perils insured Against. ' '?; .. .. ',',1

' Their Horons reserved judgment.'

. . ... WHITE.V. TjAÜMOUn.' '.'. "..'

t This was ü dcmürref tó plaintiff's' 'déclárítion, in an action against the agent of a public company, jtpon tho ground .that there was no allegation of tho'members of such .company being unknown to, plaintiff, pr. :that defendant "carried oh business ' as agent '. of., such company. . . . . "'

Mr. Faueett appeared,T support; of the demurrer, and Mr. Martin in'support of the declaration,..

? Tho OiiuRT sustained the demurrer, bitt granted leave to amend upon payment of costs.,, ., ,,,, '.'.'-^ "

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