Decastro v Edinburgh Ins. Company Ltd

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J.
• Judgment Date: 27 October 1977
• Neutral Citation: VG 1977 HC 8
• Docket Number: No. 15 of 1977
• Date: 27 October 1977

High Court

Hewlett, J.

No. 15 of 1977

Decastro

and

Edinburgh Ins. Co. Ltd.

Appearances:

J.S. Archibald, Esq. for the plaintiff

J. Smith-Hughes, Esq. for the defendants

Insurance - Warranty — Whether plaintiff had breached warranty

Facts: Evidence revealed that the plaintiff had a part risk policy for his boat which was in the port for repairs. The policy made seaworthiness into a warranty. The boat sunk.

Held: The plaintiff had satisfied the warranty of seaworthiness as applied to being in port and the defendant company was liable.

Hewlett, J.

1 The plaintiff claims from the defendants company the sum of $22,000.00 being the value of the actual total loss of his vessel the “ANNA MARIA” insured by the defendants.

2 The boat which was but seven years old had been the property of the plaintiff for about four years. She had a wooden hull built of green heart timber and was 79 feet long. The plaintiff first had her insured by the defendants in 1972 for $50,000.00. That policy was a sea-going policy. She was insured again by the defendants in 1973 but it would appear that before the expiration of the policy the defendants were obliged to cancel it for non-payment of premiums due. She was insured again in 1974 at the instance of the plaintiff's son at a time when the plaintiff through sickness was unable to manage his own affairs, and she was finally insured in 1975 for a three months period. It is this final policy which is the subject matter of this claim. It was a valued policy for $22,000.00 for the period 29th May, 1975 to 29th August, 1975 covering port risks only where the boat was in port pending repairs to her engines. The navigational limits are ascribed on the policy in these words:

“Port Risks only, Vessel docked at government Wharf, Road Town but permission granted to wave to a safe anchorage within Road Town”.

3 The defence to this claim was in the main that the plaintiff was in breach of this warranty of seaworthiness expressly incorporated in the policy. I set out below paragraphs 2, 3, and 4 of the defence as these contain all the particulars:

“2. The said policy was endorsed that the plaintiff warranted that the said vessel was in a seaworthy condition and that he would exercise due diligence to keep her seaworthy and in all respects fit tight and properly manned equipped and supplied during the continuance of the said policy which expired on the 29th day of August 1975.

“3. In breach of the said warranty the said vessel was unseaworthy and/or the plaintiff at all material times failed to exercise due diligence to keep her seaworthy and in all respects fit tight and properly manned equipped and supplied.

PARTICULARS OF BREACH OF WARRANTY

• (a) In or about the month of August 1975 the said Vessel was moved from the said Government Wharf where it was suitable for the plaintiff to safeguard her to an anchorage in Road Harbour where she could be boarded only from the sea.

• (b) Failure to keep any crew or watchman aboard.

• (c) Failure to inspect regularly for leaks.

• (d) Failure to prevent leaks both generally and in particular in the area of the stern post.

• (e) Failure to pump out regularly

• (f) On or about the said night of the 20/21st August 1975 the said vessel foundered at anchor in Road Harbour in calm weather and without having been involved in collision.

• (g) The defendant will rely on the fact that the said vessel foundered as aforesaid as in itself evidence of unseaworthiness and/or lack of due diligence.

“4. Further and in the alternative the vessel was lost through the wilful negligence of the plaintiff in looking after the said vessel.

4 The policy was a time policy, but expressly incorporated into this policy was a warranty of seaworthiness. The endorsement reads — “Warranted that at the inception of this Policy the Vessel shall be in a seaworthy condition and, thereafter, during the currency of this Policy, the assured shall exercise due diligence to keep the Vessel seaworthy, and in all respects fit, tight, and properly manned, equipped and supplied”. This express warranty is therefore inconsistent within the implied warranty contained in the Marine Insurance Ordinance Cap. 123, Sec 44(5) which reads: “In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unworthy state, the insurer is not liable for any loss attributable to unseaworthiness”. Because it is an express warranty the plaintiff is bound by it.

5 The facts of the case are simple and may be shortly stated. At the material time, the boat was tied to the Road Town jetty where she remained for some six weeks or thereabout. When at the bidding of the Harbour Master and to the knowledge of the defendants she was removed to Wickhams Cay, also within Road Harbour. Throughout the currency of the policy until 21st August, 1975 when she sank she was pumped twice daily by the plaintiff's sons with regular supervision by the plaintiff's brother. This regular pumping the plaintiff asserted, without being challenged, was a usual thing in every vessel with a wooden hull. It was to his great surprise that she sank in spite of the pumping on the 21st May, 1975. Having received word of the sinking, the plaintiff set about immediately to have her refloated. An additional pump was bought for this purpose but it was not until about early October 1975 (if the evidence of one Briar Grundy is to be believed) with the aid of equipment from Walcon Construction Co. and other aid that she was in fact re-floated, and then moved back to the Government Wharf. There the plaintiff engaged some professional divers to search for leaks as she was too large for hauling up in Tortola and such leaks as were found were repaired. But apparently she continued to take in water and by November 1975 began sinking again. Accordingly she was again pumped by Walcon Construction and removed to Nanny Cay where she now lies.

6 The plaintiff is an experienced seaman and captain for some 40 years. He had owned other ships before this and says he took care of all his ships because they were his life and his living, with some feeling he epitomised his attitude to his boats in these words: “I love my boat more than I love my wife. I have told my wife this”. He had sailed this boat over the years moving cargo between Puerto Rico and the Leeward and Windward Islands. It was on such a voyage while in Puerto Rico in 1973 that he fell dangerously ill and had to be hospitalised. The boat had then to be brought back to Tortola and the plaintiff remained out of circulation for many months. It was during this...