RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3046, 22 November 1872, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. C. Strode, Escp, 11.M.)

Civil Cases,

Clark v. The New Zealand Insurance Go.—ldlO. Mr Stout for plaintiff, and Mr Smith for defendants. The plaintiff claimed the sum of I AO, being money received by defendants per Mr H. Houghton, being the amount of premium on a policy of insurance never issued. Charles Clark, the plaintiff, said he was owner of the steamer Samson in IS7I and 1872, In January, 1872, he made a proposal to insure LIOOO in the Now Zealand Office and LSUO in the Victoria Office. There was a former policy for 1-10 0 with the New Zealand Office effected in Nov., 1871, but its provisions did not extend to the ports to which the vessel was going. She was chartered to go to the .''outhern porta. Pilot Stevens was master of the vessel. Gapt. Thomson, the H arbor Master, never was captain of the Samson. He asked to see the policy for half an hour, in order that he might see that the conditions were correctly stated. On examination, which was after the voyage had been made it was intended to cover, he said he would not receive it as drawn up. Ho never saw it before. Had the vessel been lost, he would have got nothing, as no risk was run. He returned it to Mr Elliott.—ln answer to Mr Smith : Mr Houghton was present when he went to the New Zealand Office to make proposals. They were made verbally. He did wot recollect Mr Elliott Baying he would

not insure the vessel going to the Tois-Tois unless Captain Thomson went in charge of her. The Tois-Tois was not reckoned a very dangerous place for a steamer. Insurance thither is higher than to any other port. The reason was it was not well known. It wasuot difficult of access to a steamer. - In reexamination by Mr stout; He received the old policy from Mr MHott. Henry Houghton was agent for Captain Clark in January last. He accompanied him to see that the insurance was properly effected. He believed a printed form of application to insure for a deviation was signed by Mr Clark. It was because the vessel was to call at ports not covered by the former policy. He called and gave a cheque for L3O for the policy, and directed that it should be sent to his cilice. It was sent to Captain Clark’s son, from whom he received it. On examining it, linding it differed from the proposals, he took it to Mr Elliott, and declined to receive it. He objected to Captain Thomson’s name being inserted as master, and the cancellation of the words “ or whosoever shall be master of the said ship,” and also to the written warrautry that, if Captain Thomson was not master, the policy should be null and void.—ln reply to M r Smith : It was one of the conditions of the policy that LSOO was insured in the Victoria Office for the same voyage. He denied that Mr Elliott refused to insure the vessel uubss Captain Thomson went in charge of her, or that words to that effect were used by him. It was a condition of the charty party that Captain Thomson should be on board and give the benefit of his local knowledge, and Mr Elliott knew that. He did not offer to return the L3O if he (witness) was dissatisfied with the policy. He (witness) claimed the return of the money. Mr Elliott said he would not alter the policy, for he understood Captain Thomson was going in charge. He did not think Air Jack was present at the conversations Capt. W. Thomson, Harbor Master, had never been in the Toi-Tois harbor before visiting it in the Samson, She was taken in by the Harbor Master at the Bluff. During the other portion of the voyage the vessel was under his command. Stevens was entered as master in the Custom House books, but he being a subordinate officer he (Captain Thomson) assumed the command. Captain Clark was on board and gave him instructions, first in regard to returning in consequence of a break down, and secondly in regard to a quarrel with a seaman on entering the Toi-Tois. That was one of the worst bar harbors on the East Coast. Stevens was the master paid by Captain Clark, as one of the conditions of retaining the Samson as a tugboat was that a pilot should be master. His pay was L 22 a month. —For the defence it was contended that the New Zealand Company did incur a risk, and that the policy might have been brought into accordance with the conditions by application to the Supreme Court which would have rendered them liable —George Elliott, manager of the New Zealand Insurance Company, recollected Captain! lark, Mr and Mr Jack calling at the office iu January last. Application was made to insure the Samson, but not in writing. He objected to taking a risk of LI QUO, and made inquiries whether Captain Thomson wvs to go in charge of the vessel. On it being answered that he was, be made no further objection, and issued a policy containing a clause to that effect and recognising no one else. He was the more particular as the vessel was fully insured and reported to be losing money. Mr Houghton applied to have the policy altered but he (witness) refused. In reply to Mr Stout: the terms of the policy represented strictly the risk incurred by the company, an 4 h a d the vessel been lost under any other person’s charge than Captain Thomson’s, he shoqld have refused to pay the amount insured.—Charles Jerrem, clerk in the New Zealand Insurance -Company's Office, was present when application was made to insure the Samson. Mr Elliott said distinctly he declined to insure that vessel unless Captain Thomson was in charge. He confirmed the previous evidence respecting the application to alter the conditions, but Mr Elliott offered to cancel the policy and to return the premium.—A. H. Jack, manager of the Victorian Insurance Company, was not present with Captain Clark and Mr Houghton at Air Elliott’s office, but he was present at an interview between Air Houghton and Mr Elliott, A discussion took place between them respecting the person to go iu charge of the Samson. Air Elliott gave way on condition of Captain Thomson having control of some kind on the voyage. -Capt. Thomson recalled : Had a thorough knowledge of the uoast outside the Tois-Tois harbor, but never went into the smooth water before.—His Worship considered it unfortunate the proposal was not in writing. In consequence of the discrepancy in the evidence of what took place prior to issuing the policy, there was no other way of arriving at a conclusion than taking the words of the policy. It was admitted that had the vessel been lost, the plaintiff could not recover; and as to the offer to return the L3O, it was denied by Mr Houghton. As he could only fall back on the written policy, it M'as plain no risk was incurred. Judgment for the plaintiff for the amount, with costs. Erfert v. Fisher and others was a claim for LIDO damages for an assault, Mr Stout for plaintiff; Air Harris for the defendants, Corm and Froher. For the plaintiff, it was alleged that ho had been assaulted by defendants on July 5; when returniug from a ploughing match at Palmerston, and had been beaten and lacked, and had lost his left eye. Air Stout said ho had heard that the Gorm summoned was not the proper person ; it should have been his cousin. Mr Harris applied for costs ; but Mr Stout objected, and his Worship sided with the latter. [Left sitting.]