J. C. 1870 about seven miles below Matane, and became a total wreck that the Plaintiffs gave due notice, and furnished all necessary proofs: THE QUEBEC that at the time of the making of the Policy, and up to the loss, MARINE the Plaintiffs had an insurable interest: and that there remained due to the Plaintiffs under the Policy the sum insured less COMMERCIAL Salvage, and the Plaintiffs prayed judgment for that sum. INSURANCE CO. V. THE BANK OF The Defendants pleaded a défense au fonds en droit, or demurrer, assigning for reasons, that the declaration did not aver that the Plaintiffs' interest amounted to the value of the moneys insured; that there was no averment that the loss did not happen from one of the risks excepted in the Policy, and that it did not aver that the Vessel was at the outset of the risk seaworthy; and also a défense au fonds en fait, or general traverse, and a perpetual exemption péremptoire en droit, or special plea in bar, by which it was alleged, that at the time of making the Policy, and at the time of the sailing of the West from Montreal, on her intended voyage, the West was not seaworthy for the voyage, by reason that the Engineer was ignorant of the management of Boilers in salt water, and by reason of deficiencies in the outfit of the Vessel, and because the Vessel was unfit, from rottenness of her timbers, and from the defects of her Boiler and rudder at the time of her sailing, to encounter the ordinary perils of the voyage; and the plea went on to allege, that in consequence of the defective state of the Boiler it gave way and burst about six hours after the Vessel had got into salt water, whereby the fires of the furnace were partially extinguished, and she was, of necessity, almost put on shore near the Bie in the Saint Lawrence, for the purpose of having the Boiler repaired; that after undergoing certain insufficient repairs, and having set sail again on the 11th of December, her rudder was shortly afterwards, by reason of its defective state, broken by the waves, and the Vessel, becoming unmanageable, was driven ashore. And the plea concluded by averring, that the loss was occasioned solely by her unseaworthiness at the outset of her voyage, and of her so continuing up to her loss, and that the Vessel was at no period from the commencement of the risk, more especially seeing the late period of the season at which she set sail, and attempted to prosecute her voyage, in a fit or seaworthy condition to accomplish the voyage. J. C. 1870 MARINE INSURANCE Co. THE COMMERCIAL BANK OF CANADA. The demurrer was first argued, and the Court dismissed it. Evidence was then taken, and the following facts were proved :The West was insured under a Policy agreeing with that stated THE QUEBEC in the declaration. The other allegations of fact in the declaration were also proved. It was also shewn, that the Plaintiffs had an insurable interest to the amount insured. In support of the special plea the Defendants proved, that the West had, at the time of making the Policy, and of her leaving Montreal, a crack three or four inches long in the surface of the, Boiler; that this, so long as it remained unrepaired, rendered her unfit for her voyage; at any rate, for the salt water part of it; that this crack was known to the Engineer; that about six hours after she got into salt water the Vessel became, in consequence of this defect, unmanageable; that it was necessary to put into a neighbouring port to have the defect remedied; that the repairs took, when the men sent for from Montreal to do them arrived, about a day and a half; that the Vessel was unable, in consequence of the lowness of the tides, to resume her voyage until the 11th of December; that but for the necessity of making these repairs she would have proceeded from Quebec, where she had previously, as she was entitled, stopped to take in a cargo direct for Halifax, without stoppage on the way. The Defendants failed to substantiate the other defences alleged in their pleas. The Plaintiffs gave evidence to the effect, that the repairs to the Boiler were properly made and sufficient, and that the loss was caused by an hurricane in the mouth of the St. Lawrence. Mr. Justice Stuart, one of the Judges of the Superior Court, gave judgment, condemning the Defendants in the sum claimed. From that judgment the Defendants appealed to the Court of Queen's Bench for the Province of Quebec. On the hearing of the appeal the Appellants abandoned all grounds of defence, except that the Vessel was unseaworthy at the commencement of the voyage, owing first to the incompetency of the crew for a sea voyage, because the Chief Engineer had never before been to Sea, and was ignorant of the management of Boilers in salt water; and, secondly, of the existence of defects in the Boiler of the Vessel, rendering repairs to it necessary before she started on her voyage. The appeal came on to be heard on the 16th of March, 1868. J. C. 1870 INSURANCE CO. V. THE The Court took time to consider, and afterwards, on the 20th of June, discharged the délibéré, and ordered the appeal to be heard THE QUEBEC de novo. On the 17th of September, 1868, the appeal was reMARINE argued before the same Court, which again took time to consider, and finally, by a majority of three of the Judges, consisting of the COMMERCIAL Chief Justice Duval, and the Justices Badgley and Monk, gate CANADA. judgment affirming the judgment of the Supreme Court, and dismissing the appeal with costs. Mr. Justice Caron dissenting (1). From this judgment of affirmance the present appeal was brought. The appeal was twice argued, first on the 21st and 22nd of January, 1870, by BANK OF Mr. Mellish, Q.C., and Mr. H. M. Bompas, for the Appellants; and And secondly, by one Counsel on each side, on the 20th of Sir John Karslake, Q.C. (Mr. H. M. Bompas with him), for the Appellants; and Mr. Manisty, Q.C. (Mr. Fullerton with him), for the Respondents. For the Appellants, it was contended, that the West, by reason of the crack in her Boiler, was at the time she left Montreal, as well as when she left Quebec, or when she entered sea water, unseaworthy, within the intent and legal effect of the Policy. That the fact of the Vessel having been repaired after the commencement of her voyage, though before the loss had occurred in consequence of her original defect, was immaterial, as regarded the conditions of the Policy, though the detention might have affected the risk of the voyage, and, in fact, did occasion the loss of the Vessel. They referred to Weir v. Aberdeen (2); Roberts v. Barker (3); Cook v. Jennings (4); Line v. Stephenson (5); Aspdin v. Austin (6); Phillips on Insur. § 695 [5th Ed.] On the part of the Respondents it was insisted, that there was (1) See case reported, 13 Low. Can. Jurist, 267. (2) 2 B. & Ald. 320. (3) 1 Cr. & M. 808. (6) 5 Q. B. 684. J. C. 1870 MARINE v. THE BANK OF no evidence of the unseaworthiness of the Vessel when she sailed from Montreal, the crack in her Boiler, even if admitted to have then existed, not being such a defect as rendered her "unsea- THE QUEBEC worthy" within the meaning of the Policy; that the Policy was INSURANCE CO. a river and not a sea Policy; and that the loss of the Vessel was caused wholly by the perils of the Sea, and not from any original COMMERCIAL and inherent defect rendering her unseaworthy at the commencement of her voyage. They cited and relied on Wedderburn v. Bell (1); Weir v. Aberdeen (2); Forshaw v. Chabert (3); Dixon v. Sadler (4); Biccard v. Shepherd (5); Bouilton v. Lupton (6); Thompson v. Hopper (7); Tait v. Levi (8); Gibson v. Small (9); and the American authorities, Taylor v. Lowell (10); The Merchant Insurance Company v. Clapp (11); the Civil Code of Lower Canada, Nos. 2490, 2491, 2505; Arnould on Mar. Assur. Vol. II. p. 664 [3rd Ed.]; Tudor's L. C. on Mer. and Mar. Law, p. 127 [2nd Ed.] LORD PENZANCE : This is an appeal from the Court of Queen's Bench in Canada, and the question to be determined is, whether or not the Appellants, who are the Underwriters upon a Policy of Insurance, are, in the events that have happened, liable for the loss of the Vessel insured by that Policy? The Policy was a Policy effected upon a printed form which was intended, as appears by many of its details, to have formed a Policy for river, and what may be called "inland navigation;" but the risk and duration of the Policy, as expressed upon the face of it, were "at and from Montreal to Halifax," in Nova Scotia, and it, therefore, appears to their Lordships to be practically a sea Policy as well as a river Policy. The Vessel was warranted to sail on or before the 21st of November, 1864; and within the period mentioned in the Policy that Vessel, the West, left Montreal and proceeded down the river towards the Sea. In due time she arrived at Quebec, from Quebec (1) 1 Camp. 1. (2) 2 B. & Ald. 320. (3) 3 Br. & B. 158. (4) 5 M.& W. 414; S.C. 8 M. & W.895. (6) 15 C. B. (N.S.) 113. (11) 11 Pick. Rep. 56. J. C. 1870 INSURANCE CO. THE BANK OF she pursued her voyage, and very shortly after she found herself in salt water. The Boiler of the Vessel, which had at the time of THE QUEBEC her starting on her voyage a defect in it, became unmanageable. MARINE The defect which originally existed was aggravated by the increased pressure arising from the Vessel being in salt water; but, COMMERCIAL from whatever cause, the fact is undoubted that the Boiler, owing CANADA. to the original defect, became then unmanageable. It ceased to do its work, and the Vessel was obliged to put into a neighbouring place to have the defect remedied before she could proceed on her voyage. The defect was remedied, but a considerable delay occurred before the voyage was resumed. This delay was caused partly by the state of the tides, and partly by the time necessarily consumed in repairing the existing defect; but eventually she sailed again. She met with bad weather, and was lost. The question is, whether the Underwriters, in these circumstances, are responsible for the loss that has occurred? The Underwriters defend themselves upon the ground, that the Vessel was not seaworthy for her voyage when she sailed, and they point to this defect existing in the Boiler at that time, which undoubtedly asserted and established itself as a cause of unseaworthiness as soon as the Vessel was in salt water. This defence the Underwriters undoubtedly did put forward in very plain language, as it seems to their Lordships, upon their plea, or défense au fonds en droit; and it may be remarked in passing, that although it has been argued that the present Appellants did not intend to rely upon that defence, yet that does not seem to have been questioned in either of the Courts in Canada. That the defence was raised, and that it was properly raised, seems to have been taken for granted by everybody, including the two learned Judges who have delivered their judgments in favour of the Respondents in the Court below. Now, it is undoubted, that the Vessel, from the fact of the Boiler being in the state in which it was found to be as soon as the Vessel entered salt water, was not fit to encounter the Seas, and for that reason, and that reason alone, she put in to repair. Well, then, can it be said that the Vessel sailed in a seaworthy state? The general proposition is not denied, that in voyage Policies there is an implication by law of a warranty of seaworthi |