DUCO'S OWNERS WIN.

Dominion, Volume 3, Issue 821, 19 May 1910, Page 5

DUCO'S OWNERS WIN.

■ « OPINION OF JURYUNSEAWORTHINESS NOT PROYED INSURANCE TO BE PAID., In the opinion of the special jury which has been listening to the pros and cons of tho Duco insuranco case for more than a week, it was not proved in Court that that much-discussed steamer was unseaworthy when she left Wollington on her last and fatal voyage- to the Chathams last September. Such is tlio ground of the verdict given ill tho Supreme Court yesterday, and the effeot is that tho insurance companies will be required to pay out on the policies. The plaintiffs in the case wero the Wellington Harbour Ferries, Limited, who claimed from the Corporation of the Royal Exchange Assuranco the sum of £500 insurance money oil the Duco, plus interest at 8 per cent, thereon up to the date of judgment, and legal costs.. It was understood from the outBet that other claims were pending, the total sum for which tho Duco was insured with several companies being £2500. ■ Mr. 'Justice Chapman was on the bench,-and Mr. J. G. W. Dalrymplo was "foreman of the iuryi /Plaintiffs were represented by ilr. C. P. Slcerrett, K.C., and Mr F. G. Dalziell, and defendants by Mr. j H. Hosking, K.C., Mr. A. A. S Menteath, aud Mr. W. H.D.Bcll. The Summing Up. His Honour, who began his summing up immediately after tho opening of the Court yesterday morning, said that this was an 'ordinary action on a marine insurance policy, and the policy .was in the usual terms. It insured the steamer Duco in'the sum of £500, whilst trading from Wellington or other ports in New Zealand to the Chatham Islands and back, and whilst fishing at the Chathams. It was a time policy and subject to the same warranty as if she were insured separately for each voyage. Tho owners were prima facie entitled to recover tho money unless a. defence was made out. Tho only defence that was proposedi was that the vessel was not seaworthy, and that consequently the policy would not attach to her. The onus of proving this lay upon the defence, and if it was not proved to the satisfaction of the jury, 'the plaintiffs were entitled to recover on the policy. There had been many definitions of seaworthiness, but subject ' to certain observations in detail, the meaning was fairly plain. His Honour then proceeded to define seaworthiness with tho aid of quotations from several judgments, the general effect being that a vessel, to be seaworthy, must bo in a-condition to perform tho voyage and fit to meet and undergo the perils of the sea and other incidental risks to which she must necessarily be exposed in the course of the voyage. Fitness did not mean absolute perfection. Seaworthiness might relate to the build of the ship; thus a. chip designed for one kind of l service might be unfit for another. It might have reference to her equipment, i.e., bunkers, spare sails, water, etc. It might have reference to tho loading of a vessel which was in other respects adequate for the service she was put to. The only question as to equipment in this case had reference to the material for the lashing of the coal on deck. Design as affecting seaworthiness had only been mentioned in this case in connection with the loading. Tho suggestion was that, though she' may have i been fit to go to the Chathams, she was near the border-line in that respect, and therefore required special carc in loading. The defendant company, however, had insured that particular vessel for that particular class of voyage.

Tha Main Question, The question therefore was: "Was this vessel, having regard to her design anil constructioni and generally to her build and condition, in a suitable condition, and suitably loaded to send on a voyage to the Chathams at that time of year, or was sho so faulty in loading that a breach of the warranty as to seaworthiness had been made out to have been committed?" That was the main, question, the others being incidental to it. Both parties knew beforehand that tho vessel was not originally designed for the class of voyago for which sho was insured. He had been asked to direct the jury that, having regard to the construction of the vessel, the duty of the owners was to do their utmost to make the vessel seaworthy for the voyage, but he could not go further than to say tbat their duty was t-o render her as fit to encounter tho perils of the sea as reasonable men would consider reasonable and proper under the circumstances. The question as to tho Epriety, or otherwise, of. the deck ling was one for tho jur.v. If the k cargo could easily be jettisoned, the danger, if any, was neutralised, but whether it could have been so disposed of was a question for tho jury, and in considering it they must have Tegard to the character and stowage of the cargo, and to the possibility of the crew having to work under "disadvantageous conditions.' The ultimato fact that the vessel was lost did not prove that she ..was not seaworthy. Very good vessels sometimes succumbed to unusually severe conditions at sea. It was not incumbent on the defendant company to show that she was lost by Teason of tho deck loading, and the fact of her loss was not a determining factor in deciding as to her seaworthiness. The jury must not rely on any particular witness, but upon the general cffect of all the evidence.

Tho coal on deck was ultimately the principal .subject for consideration, tho contention of the defence as to tho build of the ship being merely that sho was what might be called a. tender ship, which required particularly careful loading. Any error of judgment on the part of tho captain would not determine the case. They were always brought back to the question whether it was a proper thing to send tho ship to sea in such a condition of loading. Had the defence made out that she was so improperly loaded as to he imseaworthy .'in the sense that she was not really fit for the voyage on which she started? He did not think it was a case in which it was necessary to put a scries of specific questions to the jury; he would ask them to answer in the general form whether they found for tho plaintiffs or the defendants. The Finding. The jury retired precisely at noon, and returned at half-past three. The foreman announced that tho jury had found a verdict by a threefourths majority, and wished it to bo expressed in the following terms: "That in their opinion tho defendants have not shown . conclusively that the Dnco was - unseaworthy when she left Wellington on September 7, 1909." "In that finding," said his Honour, "I direct the jury to find a verdict for tb» plaintiffs." The verdict being given accordingly, his Honour pronounced judgment for the plaintiff company, the amount payable to be fixed by him. He also, on tho application of Jlr. ' Skerrett, granted a certificate for tho special jury, and allowed costs. Costs of the

action were allowed according to scale, also costs of second counsel at eight guineas a day . for llio seven days, and costs of senior counsel 15 guineas a day for each of six days after tlio first. „ Total Insurances: £2500. Tlio Duco was insured as follows: — Royal Exchange Assurance Co., £500; Commercial Union, £500; Australian Alliance, £250; New Zealand Insurance Co., £500; United Insurance Co., £250; Canton Insurance Co., £500. Total: £2500.