1876 PEARSON transit to or from the dry dock were to occur, not as part of the H. L. (E.) usual and ordinary means or mode of effecting the transit, but for some collateral object or purpose, then, in my opinion, however usual and convenient a delay for the purpose of attaining that collateral object might be, the ship would not, during the delay, be covered by the policy. It is unnecessary to speculate whether the risk would or would not be greater while the ship was in the river than when it was in the dock. There is, as it seems to me, evidence that the risk would be greater in the former case than in the latter, but it is sufficient to say that the Respondents have defined the risk which they were willing to undertake, and that risk cannot be enlarged beyond the ordinary meaning of the words upon any theory that the difference of risk is immaterial. Applying these observations to the facts of the present case, your Lordships find that the dock called Lungley's Dry Dock was the only dry dock in the Thames which could take in the Indian Empire, and that even into this dock the ship could not be received without taking off the lower half of the paddle-wheels. Accordingly the lower halves of the paddle-wheels were taken off in the Victoria Docks, and, having thus been made ready for the dry dock, it was towed two miles up the Thames from the Victoria Dock to Lungley's Dry Docks, and the repairs were proceeded with, and, so far as they were to be done in the dry dock, were completed there. The ship was then taken out of the dry dock, and it being intended to take the ship back to the Victoria Docks, there was nothing to prevent it being taken back there at once, and the halves of the paddle-wheels might have been replaced, just as they had been removed, in that dock. In place, however, of being towed back to the Victoria Docks, it was towed still farther up the river and moored there; the paddle-wheels were brought from the Victoria Docks in a barge, and the work of replacing them was proceeded with in the river. While this was being done, the repairs to the masts, rigging, and capstans of the ship, and other carpenters' and joiners' work, were continued at the same time, and at the end of ten days, before the paddles were completely replaced, the ship was burnt. บ. COMMERCIAL COMPANY. H. L. (E.) 1876 PEARSON V. COMMERCIAL UNION ASSURANCE COMPANY. It is found by the Case that it is usual, after a ship whose paddles have been removed is taken out of dry dock, to moor it in the river for the purpose of replacing the paddles. And it is also found that though the paddles could have been replaced equally well in the Victoria Docks, it would have cost four times as much as if done in the river. My Lords, I am clearly of opinion that the delay which was thus occasioned was a delay for a purpose altogether collateral. When the ship left the dry dock the course, if it was wished to maintain the insurance, was to bring the ship back to the Victoria Docks; and I assume that anything done in the usual course towards the attainment of this end would be within the insurance. But that which was done did not, in any way, contribute to that end. It may have been usual, and because it was economical it may have been convenient, but it did not in any way facilitate or conduce to the transit of the ship to the docks from which it had come. My Lords, it was the unanimous opinion of the Court of Common Pleas and of the Exchequer Chamber that the Respondents, in the events which have happened, were not liable under this policy for the loss which occurred. I think there is no ground whatever for differing from their judgment, and I propose to your Lordships that this appeal should be dismissed with costs. LORD CHELMSFORD: My Lords, from the moment this case was fully opened, it seemed to me impossible to doubt the propriety of the judgment in which no fewer than ten Judges agreed. I can see no ground for the statement which was made to us on the part of the Appellant, that the true point of the case was never submitted to the Court. Everything which was urged in argument before us appears to me to have been brought under the consideration both of the Court of Common Pleas and of the Exchequer Chamber. The question turns entirely on the construction of the policy, which is a localised time policy against fire, upon the steamship "Indian Empire, lying in the Victoria Docks, London, with liberty to go into any dry dock." The place to which the insurance principally applies is the Victoria Docks, this place the vessel is to be 1876 PEARSON บ. COMMERCIAL UNION ASSURANCE at liberty to leave only for the purpose of going into a dry dock H. L. (E.) for repairs. That object being satisfied, the policy seems to require that it should return without delay to its original situation, and be again "lying in the Victoria Docks." Of course the policy implicitly covers the permitted transit to and from one dock to the other. But if the parties contemplated (as it is clear COMPANY. they did) that during the currency of the policy the vessel would be usually lying in the Victoria Docks, when the intended repairs in the dry dock were completed, it was the duty of the assured to return without delay to the Victoria Docks. Instead of doing so, the ship was towed to a port of the river about 600 or 700 yards from the Victoria Docks, and there moored for ten days, during which time it was, while so moored, totally destroyed by fire. The loss, therefore, did not occur in the actual passing from the dry dock to the Victoria Docks. But it is said for the Appellant that according to the usual course of proceeding in the repair of steam-vessels of the size of the one in question, the mooring in the Thames for the purpose of replacing the half of her paddle-wheels must be regarded either as a necessary incident to the transit from the dry dock, or must be taken to have been intended to be included in the policy. But it seems to me that the precise terms of the policy afford no ground for such an argument. An insurance against fire necessarily has regard to the locality of the subject-matter of the policy, the risk being probably different according to the place where the subject of the insurance happens to be. In the present case it appears that there was greater risk where the loss happened than there would have been in the Victoria Docks, to which place the policy principally applied. The parties cannot be said to have contracted with reference to the usual practice of large paddle steamers going into dry dock to remove a portion of their paddle-wheels, because it is stated in the special case that neither party knew the vessel was of a width too great to admit of its entering the dock adjoining the Victoria Docks, where it would be expected it would go under the liberty to go into dry dock. And therefore the argument of the Appellant must go the length of asserting that it was an implied term of the policy, that if it should be necessary to remove a portion of the VOL. I. 3 2 L H. L. (E.) paddle-wheels for the purpose of enabling the vessel to enter the dry dock, its return to the Victoria Docks might be delayed during the mooring in the Thames for any time that was required to complete the work of replacing the wheels. 1876 PEARSON v. COMMERCIAL But I agree with what was said by Mr. Justice Blackburn in the COMPANY. Exchequer Chamber, that if the parties wished to cover the risk while the ship was so moored they should have provided for it by appropriate words in the policy. Whether the underwriters would have undertaken this risk it is impossible to say; as they were not aware that it would arise there was of course no provision applicable to it. It would be a strong implication to raise against the underwriters, that they necessarily contracted by the policy to extend the locality to which the insurance against fire was expressly confined, upon the ground of a usual practice of dealing with large steam vessels under repair, which they did not know would have to be resorted to on the part of the assured. More especially is this the case, when it appears that the whole work upon the paddle-wheels might have been done in the Victoria Docks. In fact the halves of the wheels were taken off in the Victoria Docks, and it is stated in the special case that the work of replacing them might have been done equally well in those docks, but that it would have cost four times as much as if done in the river; a very good reason for the assured running the risk of performing the work beyond the limits of the policy, but no reason at all for imposing upon the underwriters, by implication, an undertaking to accept a risk different and more extensive than that to which they expressly agreed to be liable. The policy only attached while the vessel was in the Victoria Docks or the dry dock, or was passing directly to and from one dock to the other. It therefore did not extend to the time while the ship was moored in the Thames, and the underwriters are not liable for the loss which then occurred. I am therefore of opinion that the judgment appealed from is right, and must be affirmed. LORD PENZANCE: My Lords, the protection intended to be given by this policy was limited expressly not only to a period of three months but to a particular place, the Victoria Docks, in which the vessel was to lie. When lost it was not "lying in" that place, but was moored in the river, and the only question is whether at the time of the loss, being moored in the river was a circumstance within the special liberty, which had been reserved to the owner in the policy, under the words "with liberty to go into dry dock." The Court of Common Pleas held, as it seems to me very properly, that this liberty was not confined to any particular dry dock, and that the Plaintiff might take the vessel to any "convenient" dry dock without losing the protection of the policy. The vessel, therefore, was justified within the limits of the "liberty' in proceeding to Lungley's Dry Dock, two miles away from the Victoria Docks, in which it was to lie, but it is contended that those limits were exceeded in the course taken with the vessel on its returning from the dry dock. In construing the meaning and extent of this "liberty" I think great latitude should be allowed. To state at length in writing all that the vessel might be intended to be allowed to do in going to the dry dock, in lying there while repaired, and then returning, the length of time to be occupied, and all that was to be done in various alternative events, would be the work of a lawyer, and a work that could not be comprised in any but a very lengthy document. The convenience of mercantile transactions makes this impossible in many cases; and in this mercantile contract of insurance especially, it is always the custom to express the mutual bargain in short and conventional terms. In construing such terms, it is always to be borne in mind that the object of insurance is indemnity from the risks attending some commercial adventure or operation which the owner of the subject of insurance is engaged upon; and it is well understood by both parties that the desire and object of the assured is that the policy should extend to all such risks, of the character insured against, as may arise by the adventure or operation being carried out in the usual and ordinary manner. The assured, therefore, is not intended to be bound to make his mode of carrying out the adventure conform to the words of the policy, rigidly construed, and confined to what is absolutely necessary; but the general H. L. (E.) 1876 PEARSON V. COMMERCIAL COMPANY. |