Supreme Court of Canada
Spinney v. The Ocean Mutual
Marine Ins. Co. (1890) 17 SCR 326
Date: 1890-06-12
Edgar K. Spinney and Sylvester L. Oliver (Plaintiffs)
Appellants
And
The Ocean Mutual Marine Insurance Company (Defendants)
Respondents
1890: Feb. 18; 1890: June 12.
Present:—Sir W. J. Ritchie C.J. and
Fournier, Taschereau, Gwynne and Patterson JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA
SCOTIA.
Marine Insurance—Delay in prosecuting
voyage—Deviation—Enhancement of risk.
There is an implied condition in a contract
of marine insurance, not only that the voyage shall be accomplished in the
ordinary track or course of navigation but that it shall be commenced and
completed with all reasonable and ordinary diligence; any unreasonable or
unexcused delay, either in commencing or prosecuting the voyage, alters the
risk and absolves the underwriter from liability for subsequent loss.
In case of deviation by delay, as in case of
departure from the usual course of navigation, it is not necessary to show that
the peril has been enhanced in order to avoid the policy.
Appeal from a decision of the Supreme Court
of Nova Scotia
affirming the judgment of the trial judge in favor of the defendants.
This was an action upon a policy of marine
insurance on the cargo of a coasting vessel, tried before Mr. Justice Townshend
without a jury. The voyage was from Pubnico, N.S. to Lunenberg and/or Halifax and the policy contained the usual
clause allowing the vessel, in case of extremity, to put into and stay at, any
port or ports without prejudice to the insurance
The vessel sailed on Dec. 15th, 1886, and on
Dec 21st arrived off Shelburne harbor; the weather indicating
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a storm, she put in
and remained in that harbor until next day when she attempted to proceed but
returned to Shelburne; she did not go to sea again until Dec. 27th, when she
started and again returned and remained in harbor until Jan. 3rd, when she
started at midnight and a snow storm and head wind drove her back; on Jan. 4th
she got as far as a place called Gull Rock when a heavy sea came on and she
tried to put back, but at the entrance to the harbor in trying to tack she
mis-stayed, and before an anchor would hold she struck on McNutt's Island and
eventually went to pieces, the crew managing to get ashore.
The insurance company produced evidence by
shipmasters familiar with the coast, and also from the log of a Dominion cutter
then cruising in the same waters, to the effect that the vessel could have
continued on her voyage at different times during the period of her stay in
Shelburne, and it was also shown that other vessels bound on the same course
did proceed during that period after seeking shelter in Shelburne.
The defendants had pleaded a number of pleas
to the action, two of the defences raised being "barratry of the master
and mariners," and "deviation by delay." The trial judge found
that the vessel was designedly cast away, and gave judgment for defendants on
the issue of barratry. In his judgment, which is published in full in the report
of the case in the court below,
he states that he attached little credit to the evidence of one of the
witnesses., Nathan Snow, by whose testimony, mainly, barratry was established.
The full court held that without the evidence of this witness the defence as to
barratry must fail, but they confirmed the judgment for the defendants on the
ground of deviation. From that decision the plaintiff appealed to the Supreme
Court of Canada.
[Page 328]
Henry Q.C.,
and Bingay for the appellants. The only question we are called upon to
argue is that of deviation, as there is no appeal against the decision of the
Supreme Court of Nova Scotia that the defence as to barratry has failed.
The propriety of seeking a port, or sailing
from it, at particular times must be left entirely to the discretion of the
master, and more especially so in the case of small coasters navigating the
dangerous waters of the Bay of Fundy. See The Sarah; Turner
v. Protection Ins. Co.;
The Oregon;
Phillips on Insurance;
Lawrence v. Minturn.
The only question in this case is: Did the
master act in good faith? At the worst the facts only show error in judgment. Turner
v. Protection Ins. Co..
Borden for the
respondents. The facts have been found in favor of the underwriters by the
trial judge and the full court below, and this court has invariably refused to
interfere with such findings. The Picton;
McCall v. McDonald. (1).
The judgment on the ground of deviation is
fully warranted by authority. Carver on Carriage by Sea; Phillips on Insurance; Marshall on Insurance; Maryland Ins. Co.
v. LeRoy.
Sir W. J. RITCHIE C.J. (After stating the
substance of the proceedings in the action and the nature of the appeal, His
Lordship proceeded as follows): There can be no doubt that the understanding
implied in the contract is not only that the voyage shall be accomplished in
the track or, course of navigation in which it ought to
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be pursued, but also
that the voyage shall be commenced and completed with all reasonable
expedition, that is, with all reasonable and ordinary diligence, and that any
unreasonable or unexcused delay, either in commencing or prosecuting the voyage
insured, alters the risk and absolves the underwriter from his liability for
any subsequent loss. No doubt it must be an unreasonable or inexcusable delay,
that is, a wilful and unnecessary waste of time. In like manner as in the case
of a departure from the usual course of navigation it is not necessary to prove
that the peril has been enhanced, so it is equally clear that the same
principle applies in case of deviation by delay.
I think there was
ample evidence to justify the conclusion arrived at by the full court,
including Mr. Justice Townshend, the trial judge, who concurred with the other
judges on the question of deviation. The court below thus puts the case:
The vessel in question the "Village
Belle," was a fishing schooner 40 tons burthen laden with a cargo of dry
fish, which cargo was on the 30th November insured on a voyage from Pubnico to
Lunenburg Halifax. The schooner, which was proved to be seaworthy and had new
sails, left Pubnico on the 15th December. That night, although the wind was
fair for going through Barrington Passage, she put into Doctor's Cove; she left
there finally on the 20th and that evening put into Shelburne Harbor where she
remained until the 4th day of January. The voyage from Shelburne to Lunenberg,
to which port she was bound, could according to the evidence be made with a
fair wind in seven or eight hours, and in my opinion the delay of 14 days in
Shelburne Harbor was altogether unreasonable unless satisfactorily accounted
for by the plaintiffs the onus being on them to do so. Capt. Lorway
proved that a fair wind from Shelburne to Lunenburg would be any wind from
south round westerly to north, and this is admitted by Larkin, the Master of
the "Village Belle." It was established by the mate of the Government
cruiser "L. Houlett" who regularly kept the log of that vessel, that
at Shelburne on the 21st, 22nd, 23rd, 26th, 27th and 28th days of December and
the 2nd and 3rd days of January the wind and weather were such that the
"Village Belle" could have continued her voyage, and it appears that
one or
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more schooners bound to the eastward which
had put into Shelburne Harbor did proceed during that period.
In answer to this
the master of the Tillage Belle enters into no particulars—admits he cannot
remember how the wind and weather on each day of his stay in Shelburne were—he
kept no log and contented himself with stating generally that he could not
proceed on his voyage, without, as the court below says, attempting to justify
the delay between the 27th December and the 3rd of January.
Michael Belliveau,
one of the crew of the Village Belle, says on cross-examination "I cannot
undertake to say anything as to the wind on different days nor the weather nor
as to reasons for not sailing." And John Wiman another of the crew, says
"I left vessel 2nd January 1887";. on cross examination he says
"I cannot swear wind was unfavorable for our voyage the night we went to
Cape Negro. I do not speak of character of wind or weather after I went into
Shelburne; and then on his re-examination he says:—
The weather from the time we left Pubnico
Harbor till we got to Shelburne was so unfavorable we could not proceed on our
voyage.
But he also says: —
Cannot say what weather was on 22nd, or 23rd
of Dec. nor on 24th, 25th, or 26th. I know the day before I left, Saturday,
there was a heavy south east gale and continued in afternoon more southerly. I
left vessel Sunday 26th January. Cannot speak of weather 28th, 29th, 30th or
31st. I remember on January 1st there was bad weather, and on Sunday there was
rain all day.
The captain of the
Dominion cutter, who was in Shelburne harbor, says that on the 28th December he
rendered assistance to the schooner Ospray bound from Boston to La Have which
had struck a rock off Baccarot and within a day she proceeded on her voyage, La
Have being about sixty miles to eastward of Shelburne in direction of Halifax;
and he says—"a fair wind from Shelburne to Lunenburg would be anything
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from south round
westerly to north." He describes the wind and weather while in Shelburne
from day to day and says, "If vessel was sea-worthy nothing to prevent her
proceeding on her voyage."
If such was the case
it is evident that the captain's remaining in a harbor when he could have
proceeded on his voyage was in this case wholly unjustifiable and amounted to a
clear deviation. It is therefore impossible, in my opinion, for this court to
say the court below was wrong in so holding.
FOURNIER J.—I am of opinion that this appeal
should be dismissed for the reasons given by Mr. Justice Ritchie in the court
below.
TASCHEREAU J.—I am of opinion that the appeal should be
dismissed with costs.
GWYNNE J.—To an action on a policy of marine insurance the
defendants pleaded no less than sixteen pleas, two of which only were rested
upon at the trial, and these two are as follows:
"10th. The
defendants further say that after the commencement of the said voyage and
before the alleged loss, the said vessel deviated from the voyage;" and
"13th. The said
loss occurred and was caused by the barratry of the master and mariners on board
of the said vessel which was not insured against by the said policy."
The learned judge
who tried the case rendered a verdict for the defendants upon this latter plea,
although the only direct evidence in support of it was the evidence of one
Snow, a hand on board, as to whom the learned judge said that he made an
unfavorable impression upon him as to his honesty and truthfulness; but he
thought that this man's evidence, notwithstanding,
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taken with other
circumstances, such no doubt being the facts relied upon as evidence of
voluntary deviation, was worth something; and he added that without any
reference to Snow's evidence he came to the conclusion that the vessel was
deliberately cast away by the captain, and he therefore found a verdict for the
defendants upon the plea of barratry.
The Supreme Court of
Nova Scotia on the appeal was of opinion that without the testimony of Snow
there was not sufficient evidence to sustain the contention that the loss was
occasioned by the barratry of the master; in this opinion I concur. The Supreme
Court was further of opinion that the fourteen days delay in Shelburne harbor
was altogether unreasonable unless satisfactorily accounted for, and that it
was not at all accounted for, and the defendants were therefore entitled to
judgment upon the plea of deviation. Upon a careful perusal of the log of the
Government schooner L. Houlett, the accuracy of which is testified to, and the
evidence in relation to the weather during the period of that delay, the captain
of the insured vessel having himself kept no log, I cannot say that the
judgment of the Supreme Court upon the plea of deviation is not well founded,
and the judgment of that court should, in my opinion, be maintained, and the
appeal dismissed with costs.
PATTERSON J. concurred.
Appeal dismissed with costs.
Solicitor for appellants: George Bingay.
Solicitor for respondents: R. L. Borden.
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