Ashworth v General Accident Fire and Life Assurance Corporation

• Jurisdiction: Ireland
• Judgment Date: 04 July 1955
• Date: 04 July 1955
• Court: Supreme Court

Supreme Court.

Ashworth v. General Accident Fire and Life Assurance Corporation.

PETER GERARD ASHWORTH

and

THE GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION LIMITED

Insurance (marine) - Time policy on ship - Total loss of insured vessel - Whether proximate cause of loss was a peril of the sea or the unseaworthy condition of the ship - Marine Insurance Act, 1906 (6 Edw. 7, c. 41),s. 39, Sub-s. 5.

Appeal from the High Court.

The respondent, Captain Ashworth, was the owner of the motor vessel, Mountain Ash, which was insured with the appellants, The General Accident Fire and Life Assurance Corporation, Limited, under a time policy of marine insurance for the sum of £6,000.

The Mountain Ash was used in trading along the coasts of, and across, the Irish Sea.

In the month of November, 1949, the Mountain Ashbecame a total wreck in circumstances in which the respondent claimed that he was entitled to the full sum of £6,000 under the policy of insurance.

The facts have been summarised in the headnote and are fully stated in the judgment of Davitt J., post.

From the above judgment the defendants appealed to the Supreme Court (1).

A ship was insured against perils of the sea under a time policy of marine insurance. The ship left Cork light to pick up a cargo at Wexford. On the way a defect occurred in an exhaust pipe and she put into Youghal to have it repaired; while there she was fitted also with a new starboard propeller. Continuing the journey to Wexford she gave another ship which was in trouble a tow and as a result of the tow-rope parting she went ashore on the rocks at Youghal, where she remained for several days. Her rudder was damaged and her hull holed in several places. Following repairs she was got off the rocks and continued her voyage. When some miles out from Youghal the port engine was put out of commission and she continued the run on her starboard engine. This in turn stalled when she stopped to pick up the pilot and she was towed into Wexford. Some time after her arrival she was found to have some 6 or 7 inches of water in her hold, which was pumped out by the fire brigade, and the hole was repaired by members of the crew inserting a concrete patch, though they had no previous experience of such work. The leak was not completely stopped and as an additional precaution sacking was placed over the concrete patch with a "pressure bar" to keep it in position. With a view to having her dry-docked for examination and overhaul it was arranged to send her to Ringsend. Prior to leaving Wexford certain work was carried out to the ship, a rotary pump was fitted in the engine room and driven by belting off the port engine and a certificate of seaworthiness was obtained. On the journey to Ringsend, notwithstanding the full operation of the rotary pump, the ship was making water at the rate of 2 inches per hour. When about 4 or 5 miles from Arklow the port engine again gave trouble and it was decided to put into Arklow where the services of the fire brigade were obtained to pump out the ship and some further repairs were carried out.

On leaving Arklow there was apparently 7 to 12 inches of water in the hold and from taking periodic soundings it was found that she was still making water, against the pump's full action, at the rate of 2 inches per hour. Near Wicklow Head the engine began to overheat; the engine was stopped and for some time the ship drifted with the tide. During this period the soundings showed that without the pump she was making water at the rate of 14 inches per hour. As no engine repairs were possible for many hours, due to the heat of the engines, and as it was appreciated that she could not keep afloat until daylight the following day, it was decided to beach her and the ship was driven ashore and beached bow on on a beach at Kilcool, Co. Wicklow, at about 6 p.m. on the 19th November, in calm weather. Work was commenced on the engine but before it could be used effectively the weather deteriorated rapidly; an outshore wind got up and increased greatly in strength, creating heavy seas. The anchor dragged and the combined action of wind and waves brought the stern of the ship round and threw her broadside on the beach. An attempt to get her off was made by means of the engines but as there was not sufficient water under her stern the attempt failed. It was proposed to make another attempt to get her off the beach at full tide, but before high water the weather had further deteriorated, high seas were breaking over the bridge and she was being washed by the waves. Further unsuccessful attempts were made to refloat the ship and she was eventually abandoned as a total constructive loss. The plaintiff sought to recover for the loss of the ship under the time policy of marine insurance.

Held by Davitt J. 1, that the ship was sent to sea in an unseaworthy condition; 2, that this was done with the privity of the owner; and, 3, that there was a new cause intervening between her unseaworthiness, which put her on the beach, and her ultimate loss, namely, the stress of high winds and heavy seas which caused her to drag her anchor and pile herself broadside on to the beach, and the proximate and effective cause of the ship becoming a total constructive loss was not her unseaworthy condition, but a peril of the seas, within the meaning of the policy. On appeal by the defendants it was.

Held by the Supreme Court (Maguire C.J. and O'Byrne J.; Black J., dissenting), allowing the appeal, that the ship was not seaworthy; that it put to sea in an unseaworthy condition with the privity of the insured; that the loss was due to the unseaworthiness of the ship.

Per O'Byrne J.:—"The unseaworthy condition of the ship was the dominant and effective cause of the loss . . . and that the loss is attributable to that condition, within the meaning of s. 39, sub-s. 5, of the Marine Insurance Act, 1906."

Black J. was of opinion that the appeal should be dismissed because while the ship was unseaworthy and the unseaworthiness was the dominant cause of the loss, within the meaning of Leyland Shipping Co. v. Norwich Union Fire Insurance Society[1918] A. C. 350, in his view privity involved actual knowledge and the appellants failed to establish that the insured was privy to the unseaworthy condition of the ship.

Cur. adv. vult.

Davitt J. :—

This is an action to recover £6,000 on foot of a time policy of marine insurance upon the motor ship, Mountain Ash.Various issues were raised by the pleadings, but it has been agreed that the ship has become a total constructive loss, and that either the whole or none of the £6,000 claimed is recoverable by the plaintiff. The only questions which were agitated on the hearing were as follows:—

• (a) Was the ship sent to sea in an unseaworthy condition?

• (b) If so, was this done with the privity of the owner?

• (c) If it was, then was it a peril of the sea or the unseaworthy condition of the ship which was the proximate cause of her loss?

The facts are not very much in controversy, though the witnesses do differ from each other in some respects. It will be in any event necessary, I think, if somewhat tedious, to review the facts. The following appears to me to be the history of events leading up to the loss of the ship as it is disclosed by the evidence.

The Mountain Ash, formerly the Valerie Ann, is believed to have been constructed originally as a kind of landing craft for use at Gallipoli during the 1914-1918 War, and had a flat bottom to facilitate her being beached. She was about 100 feet long, of maximum breadth about 20 feet, and her hold was about 7 feet in depth. She was powered by two Leyland Diesel engines, fitted, according to Captain Ashworth, in 1948. Some eighteen months before her last voyage, she had broken the starboard propeller and had thereafter been working on her port engine only. Captain Ashworth was full owner and used her in trading on voyages along the coasts of and across the Irish Sea. In the early part of October, 1949, she came from Garston, Lancashire, with a cargo of 130 tons of coal to Union Hall, Cork, and left light to pick up a cargo at Wexford. On the way, she had some trouble with an exhaust pipe and put into Youghal to have it repaired. There she was fitted also with a new starboard propeller and started on her way to Wexford. She met the Susan Vittery, another of Captain Ashworth's ships, which happened to be in trouble of some kind, and took her in tow. The tow-rope parted and the Mountain Ash went ashore on the rocks at Youghal, where she remained some seven days from the 12th to the 19th October. Her rudder was damaged and her hull appears to have been holed in several places. Her rudder was repaired; as was certain damage to her hull above the water-line by means of concrete "boxes." Her bottom had been extensively grouted on the inside with concrete and it was difficult to locate the damage or to ascertain its extent. She was got off the rocks and refloated without the aid of salvage contractors and, on the 7th November, she left Youghal for Wexford with Captain Ashworth on board, and in charge of her then skipper, Captain Ennis. Both engines functioned properly until she was about nine miles out from Youghal, when something went wrong with the water-circulation system of the port engine which put it out of commission, and she completed the run to Wexford on her starboard engine. This in turn stalled when she stopped to pick up the Wexford pilot, and she was eventually towed into Wexford and berthed beside the quay.

Sometime after her arrival, it was found that she had some 6 or 7 inches of water in her hold, and Captain Ashworth had her pumped out by the fire brigade. Two members of the crew, Brendan McDonnell and Liam Cooke, then located the site of the leak and removing a small piece of the concrete grouting threw in a few shovel-fulls of dry sand and cement. Captain Ashworth requested...