Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 INSURANCE.

M'nair
v.
Graham, &c

Date: 7 August 1765

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Robert M'Nair, merchant in Glasgow, had a ship at Virginia, loading with lumber for Barbadoes, under the care of his son James, who wrote to his father, of the 7th and 22d May 1750, that he was loading the ship for Barbadoes, with an intent to purchase sugars there, and then to return to Glasgow; as to which last voyage he might make insurance to the extent of £1000; but, in going to Barbadoes, there was little occasion for insurance. Before receipt, however, of these letters, Robert M'Nair insured with Messrs Graham and others, £1000 on the voyage from Virginia to Barbadoes; and the policy bore, that the ship and cargo are, and should be valued at £1000, without any further account to be given by the assured to the insurers. The ship, having sailed from Virginia on the 25th of June 1750, was wrecked on a rock near to the Islands of Bermudas, on the morning of the 2d of July: some time after which, Robert M'Nair received a letter from his son, dated 27th June 1750, as from Virginia, stating, that he was lying there for a fair wind, stating the particulars of his cargo, &c. and pressing his father very much to insure, on account of the dangers of the Islands of Bermudas, which lay betwixt Virginia and Barbadoes. The father, suspecting no evil of his son, made an additional insurance of £350; but, it afterwards appearing that this letter was antedated, and was wrote after the shipwreck, Mr M'Nair never made any demand upon it. Upon James's returning home, James was tried, at the instance of the underwriters, before the Admiral, for his life, as having wilfully destroyed the ship and cargo. The jury, 1761, found, “That he had endeavoured to defraud the insurers, by giving orders to insure a greater quantity of goods than the ship could hold, and putting a value on ship and cargo much higher than their real worth: but found it not proved that he wilfully cast away the ship and cargo, or was art and part in so doing.”

The underwriters, having failed in this attempt, refused payment of the policy. The Judge-Admiral having, however, decerned for it, 24th December 1764; the underwriters suspended, founding their reasons of suspension on the 19th Geo. II. c., and on an alleged wilful deviation from the voyage from Virginia to Barbadoes, whereby the ship was run upon the Bermudas. Lord Auchinleck, Ordinary, 8th February 1765, repelled the first, and found the second not proven. To the first part, the Lords, 22d June 1765, adhered; but, as to the second, they found the deviation proven, and that no action lay upon the policy: but they altered, 7th August 1765, and found no wilful deviation. And, on an appeal, these interlocutors were affirmed, 29th March 1770.