C. A. 1903 CUNARD STEAMSHIP COMPANY V. MARTEN. defendant had underwritten for 1000l., to recover the defendant's proportion of expenses alleged to be recoverable under the suing and labouring clause in the policy. The plaintiffs were the owners of the steamship Carinthia, and in April, 1900, they contracted with the British Government to carry on the ship 1500 mules from New Orleans to Cape Town. The contract contained no clause exempting the plaintiffs from liability for loss arising from the negligence of their servants. and The policy, dated May 9, 1900, was effected to protect the plaintiffs as owners of the ship against "liability of any kind to owners of mules or cargo up to 20,000l., owing to the omission of the negligence clause in contract charterparty and bill of lading." or and ог The policy was in the ordinary Lloyd's printed form, the above clause being inserted in writing. The printed part contained the ordinary suing and labouring clause in the following terms: "And in case of any loss or misfortune it shall be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the said goods and merchandises and ship, &c., or any part thereof, without prejudice to this insurance; to the charges whereof we, the assurers, will contribute each one according to the rate and quantity of his sum herein assured." The ship sailed from New Orleans on May 11, 1900, with 1500 mules on board, their value being about 40,000l. On May 15, 1900, she was stranded off Hayti, owing to the negligence of the plaintiffs' servants. Efforts were made to save the mules, and in the result more than 900 were rescued and were sent to Cape Town in another ship. The remainder were lost. The plaintiffs in saving the 900 mules and in endeavouring to save the others incurred (as they alleged) expenses amounting to 77441. Os. 8d., and by this action they claimed under the suing and labouring clause to recover 3871. 4s. 2d., the defendant's proportion of the expenses. Walton J. gave judgment for the defendant on the ground that the suing and labouring clause was inapplicable to the insurance actually effected, and was no part of the contract. The learned judge recognised that a suing and labouring clause might be framed which would be appropriate to such an insurance as was effected. But any attempt to apply to that insurance a clause which was framed and intended to apply to an insurance of a different kind would work injustice, unless, in order to make the clause applicable to the insurance in question, it was so modified as to make it in fact a different clause altogether. The plaintiffs appealed. Pickford, K.C., and Loehnis, for the plaintiffs. It is submitted that the suing and labouring clause applies. The liability to the owners arises out of the loss of the mules, and that liability was diminished by the salving of the mules. That is for the benefit of the shipowners, but it is also for the benefit of the underwriters. There may be some difficulty in applying the suing and labouring clause, but that is not a reason for excluding it altogether. No doubt words in a contract may be rejected when they are absolutely inconsistent. with the rest of the document, but there is no such inconsistency here. Walton J. based his judgment on two grounds(1.) that the policy was not upon goods; (2.) that there might be a case in which the expenses incurred would be for the benefit of the assured, and not for the benefit of the underwriters. It is submitted that neither of those grounds affords a sufficient reason for excluding the suing and labouring clause. As a matter of fact, in the present case the underwriters have the whole benefit of the expenditure. The parties have agreed that the policy shall have in it a suing and labouring clause if it can be applied to the case, and there being no absurdity or inconsistency it can be applied. Xenos v. Fox (1) is distinguishable. There the "running down" clause was not a part of the policy; it was an additional contract. If the suing and labouring clause does not apply, the shipowners might (1) (1868) L. R. 3 C. P. 630; (1869) L. R. 4 C. P. 665. C. A. 1903 CUNARD STEAMSHIP COMPANY V. MARTEN. C. A. 1903 CUNARD COMPANY V. MARTEN. incur heavy expenses which would benefit the underwriters and they would be under no liability. That could not have been the intention. If expenses are incurred which in fact STEAMSHIP benefit the underwriters, it must have been intended that they should recoup the shipowners. A contract of marine insurance ought not to be construed in a different way from other contracts. The whole of the policy must be looked at: Cory v. Burr. (1) In Kidston v. Empire Marine Insurance Co. (2) Willes J. said that expenses incurred in averting a loss for which underwriters would have been liable are within the suing and labouring clause. That applies to the present case. The plaintiffs have taken steps to diminish the liability which would be incurred by the underwriters under the policy. [VAUGHAN WILLIAMS L.J. referred to Paterson v. Harris. (3)] Carver, K.C., and F. D. MacKinnon, for the defendant, were not called upon. VAUGHAN WILLIAMS L.J. In my opinion this appeal must fail and the judgment of Walton J. be affirmed. Every one is agreed that, whatever is the subject-matter of this policy, it is plain the mules are not. Both sides agree in that. The subject-matter of the policy is "To cover shipowner's liability of any kind to owners of mules cargo up to 20,000l., owing to the omission of the negligence clause in contract charterparty bill of lading." and от and and or I do not understand the plaintiffs to say that they could recover the whole expenses which were incurred in salving the mules as a direct loss under this policy; it is because they feel the impossibility of doing that that they are obliged to have recourse to the suing and labouring clause. That being so, how does the matter stand? [The Lord Justice read the suing and labouring clause, and continued:-) -] Now primâ facie, as was pointed out by Walton J., the words "said goods and merchandises" have no application to the (1) (1881) 8 Q. B. D. 313, 315. (2) (1866) L. R. 1 C. P. 535, at p. 552. (3) (1861) 1 B. & S. 336; (1862) 2 B. & S. 814. C. A. 1903 CUNARD COMPANY V. MARTEN. Vaughan Williams L.J. subject-matter of this policy. But it is said, although these words do not directly apply and the mules are not the subjectmatter of the policy, yet by salving the mules you are really averting a liability to the owner of the mules, and therefore STEAMSHIP the suing and labouring clause applies. I do not think that one ought thus to strain the words of the policy to make them apply to this subject-matter. In my view the parties never could have intended it. The value of the mules was 40,000l., and the amount insured to cover the liability to the cargo owners was 20,000l. In case the salvage expenses had amounted to the whole 20,000l. the assured would, if this argument is right, have been entitled to recover the whole of that loss, although the insurance was for only half the value of the mules. In fact, although both sides are agreed that this is not an insurance on the mules, we are invited to apply the suing and labouring clause just as if it was. I adopt in full the reasoning of Walton J., and I feel that it is impossible for me to improve upon what he said. ROMER L.J. I also do not see my way to differ from Walton J. The point involved is a very short one. It is admitted on behalf of the appellants that this policy of insurance is not upon the mules or goods or ship at all; it is what it purports to be, solely an insurance to cover the shipowner's liability of any kind to the owners of mules or cargo up to 20,000l., owing to the omission of the negligence clause in the contract of affreightment. That is the only subject-matter of the insurance, and it is inserted in a policy the printed part of which applies to an insurance on ship and goods and cargo. Naturally enough, you find that most (if not all) of the printed matter has little or no application to the precise risk insured. But it is said that one of the printed clauses can be singled out from the others and made applicable-namely, that which is commonly called the suing and labouring clause. How does it run? [The Lord Justice read the clause, and continued:-] That clause refers to "the said goods and merchandises and ship," because, as I have said, the printed form of this policy is for an insurance on the ship and goods. Therefore the suing 1903 CUNARD C. A. and labouring clause refers to "the said goods and merchandises and ship," and admittedly this insurance is not on any goods or merchandises or ship at all. Of course I would, if I STEAMSHIP could do so reasonably, apply that clause to the present case, but it appears to me that it cannot reasonably be applied to such a case. In my opinion the clause was never intended to apply to such a subject of insurance; it was on the very face of it intended to apply only to an insurance on “goods, merchandises, and ship." COMPANY v. MARTEN. Romer L.J. STIRLING L.J. I agree, and I cannot usefully add anything. Appeal dismissed. Solicitors: Rowcliffes, Rawle & Co., for Hill, Dickinson & Co., Liverpool; Parker, Garrett & Co. W. L. C. |