Collision: the ¾ liability clause
William France Fenwick & Co., Ltd v Merchants' Marine Insurance Co Ltd [1915] 3 K.B. 290
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William France Fenwick & Co., Ltd v Merchants' Marine Insurance Co Ltd [1915] 3 K.B. 290The Issues Insurance (Marine)—Running down Clause—Damage in Consequence of Collision—Construction of Clause. The Facts By a policy of marine insurance upon the hull and machinery of a steamship it was agreed that if the ship thereby insured should come into collision with any other ship or vessel, and the assured should in consequence thereof become liable to pay, and should pay by way of damages to any other person or persons any sum or sums … the underwriters would pay the assured a certain proportion of such sums. The insured ship, the Cornwood, by reason of her negligent navigation came into collision with another ship, the Rowen, which she was overtaking. The impact was very slight and had practically no effect. After the collision the other ship, the Rowen by reason and as a direct consequence of the incidents of the collision, including the manoeuvres properly adopted by her to minimize the effects of the collision, came into collision with a third ship, the Galatee, to which a large amount of damage was done. The owners of the insured ship having been held alone to blame for both collisions became liable to pay, and paid, sums in respect of damages arising out of both collisions. The owners of the insured ship claimed under the policy the sums paid, but the insurer rejected the claim, arguing that there had been no direct physical contact between the Cornwood and the Galatee. Held, that the right inference to be drawn from the facts as proved was that the collision with the third ship was a consequence of the collision between the insured ship and the other ship within the meaning of the clause, and that therefore the insurers were liable to pay to the owners of the insured ship the proportion they had underwritten of the damages arising out of both collisions. SWINFEN EADY L.J.
The collision between the Cornwood and the Rouen, and afterwards between the Rouen and the Galatée, has already been the subject-matter of proceedings in the Admiralty Court. The question there, of course, was different from the question which we have to decide; but the facts as found and determined by the Court of Admiralty and ultimately by the House of Lords are the basis from which we start in this case. The question to be determined there was whether the Cornwood or the Rouen was the ship to blame for the collision which took place between the Rouen and the Galatée. The collision between the Rouen and the Galatée was the result of the action of one or both of the Cornwood and the Rouen —one or both of those vessels being to blame. It was ultimately determined that the Cornwood was to blame for the collision: so that we start with that fact. The collision between the Cornwood and the Rouen was itself very slight and caused very slight damage; but the damage occasioned to the Galatée by the collision with the Rouen was very serious damage, involving, we are told, something like £15,000. In the litigation in the Admiralty Court it was held that the Cornwood was to blame. The present case raises the question whether that collision for which the Cornwood was to blame was in consequence of the collision between the Cornwood and the Rouen. The judge below has held that it was; but the appellants contend that he has misdirected himself in point of law and that upon the facts as he found them he ought to have decided the other way. That contention is based upon this finding. Bailhache J., after pointing out that actual contact between the two vessels, that is to say, collision between the ship insured and some other ship or vessel is essential in order to bring this clause into operation, proceeded as follows: “In one sense it is quite true to say that the collision between the Rouen and the Galatée was not due to the collision between the Rouen and the Cornwood, that is to say, it was not due to the actual impact between the two vessels. I do not think it was. The impact, so far as it had any effect at all, was to drive the Rouen away from the Galatée.” It is said that that finding of fact goes the whole way; and that as the judge found that the collision between the Rouen and the Galatée was not due to the actual impact between the two vessels, the Rouen and the Cornwood, he ought to have said that the plaintiffs were not entitled to succeed. In my opinion, according to the true construction of a clause such as the present, an assured may become liable to pay damages in consequence of a collision between his ship and another ship, although the damage is not immediately and directly caused by the actual impact between the two colliding vessels. The learned judge afterwards goes on to say this: “It does not seem to me to be necessary at all, granted that there is a collision, to find that the actual impact of the two vessels drove the Rouen into the Galatée . I think it is sufficient to find that the forces put into operation by the negligent navigation of the Cornwood did in fact not only cause a collision between herself and the Rouen , but, having done that, afterwards sent the Rouen into the Galatée .” That is a part of his judgment which has been much commented upon. It is possible that the negligent navigation of the Cornwood might have caused a collision between that vessel and the Rouen, and the negligent navigation of the Cornwood might also, and subsequently, have caused the Rouen to collide with the Galatée, and yet the collision between the Cornwood and the Rouen would not necessarily have caused the collision between the Rouen and the Galatée. It is therefore necessary to consider how the facts of this case stand. In the navigation of these vessels proceeding up the river, owing to the improper way in which the Cornwood was navigated, she approached too close to the Rouen. There was an attraction between these vessels, with actual collision. The effect of the attraction was to cause the bows of the Rouen to be turned to or inclined to port, which action was for the moment arrested during the time the vessels were in contact; but, after the Cornwood had proceeded to pass the stem of the Rouen, the port direction of the Rouen proceeded, and was accelerated by the wash of the Cornwood on the starboard bow of the Rouen. Moreover, in order to avert a collision those on board the Rouen, seeing the collision was imminent, had put their helm hard a-port, and had reversed the engines. The consequence was that the Rouen was setting across the stream, and had lost her steering way, and proceeded directly into the Galatée, striking the Galatée almost at right angles. Mr. Littledale, who is a master mariner, was cross-examined with regard to the actual or direct effect of the impact itself between the Cornwood and the Rouen; and he said that might be disregarded, that it was a blow and not a push, and that as a blow it might be disregarded. Then, dealing with the Rouen's being out of control, he said “a ship is always out of control in a collision,” and then he explained that as meaning “from the mere fact that once in a collision various actions have to be taken, such as putting her engines astern to minimize the effect of the blow.” “It is a recognized thing at sea in collisions that your vessel is altogether out of control for the time being. Her speed is reduced. The moment you put your engines astern you have lost control of your ship,” meaning that the ship has diminished control and steering way. The too close proximity of the Cornwood and the Rouen occasioned the collision between them, and a direct consequence of the incidents of the collision, including the manoeuvres necessitated by the collision, was the cause of the Rouen striking the Galatée. Under these circumstances, I am of opinion that the damage occasioned to the Galatée arose in consequence of the collision between the Cornwood and the Rouen, although not the direct and immediate consequence of the impact—although one ship was not, by the force of the impact, driven directly against the other. The collision, with what has to be taken as part of the collision,—the attendant incidents of the collision—produced the subsequent result. For these reasons I am of opinion that the judgment below was right, and that the appeal should be dismissed. BRAY J. The question which we have to decide is this:—whether the assured was, in consequence of the collision, liable to pay a large sum to the Galatée for the injury done to her by the collision between the Rouen and the Galatée. In order that the plaintiffs may succeed it is necessary first of all to show that there was a collision. There is no question about that. In my opinion the collision, and the manoeuvres which were necessarily taken in order to avoid or minimize the collision, were the cause of the Rouen being unable to avoid the Galatée. Appeal dismissed.
The critical issue here is what constitutes a vessel, for the purposes of the ¾ Collision Liability Clause? The clause can only be relied on to recover moneys paid by the assured for the “loss or damage to any vessel or property on any other vessel”. Thus, the insurer is only liable for the loss or damage resulting from the assured’s vessel’s collision with another vessel. The test of what “structure” constitutes a vessel was first laid down in Chandler v Blogg (1898) 1 QB; it is to be observed, however, that this test is by no means universally accepted. Bottom of Form
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