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![handle is hein.slavery/ssactsengr0679 and id is 1 raw text is: WATSON V. CLARK [1813]
in, stating that, under the circumstances of the case in question, it was competent
to the Court to have taken the whole merits into consideration. These certificates
were defective in this, however, that the fact did not appear to have been stated to
the persons who signed them, that the Lord Ordinary had required this condescend-
ance. The most proper mode of proceeding would therefore be, to remit the cause
to the Court below for review. It would be seen from the judgment in the other
cause, that their Lordships differed from the conclusion of the Judges below, if they
had decided on the merits, and the judgment would of course be altered ; but if they
[336] had decided on the point of form, then the judgment must remain as it was.
Ordered and adjudged, that the cause be remitted to the Court of Session, to review
the interlocutors conplained of.
Agent for the Assured, CHALMER.
Agent for the Underwriters, MUNDELL.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION.
WATSON, and Others,-Appellants; CLARK,--Respondent [May 12, 1813].
[Mews' Dig. xiii. 260, 1160 ; 3 Scots R. R. 85. Commented on in Pickup v. Thames
Insurance Co., 1878, 3 Q. B. 1). 594. And see Parker v. Potts, 1815, 3 Dow 23.]
[Insurance on the Midsummer Blossom, an old ship, at and from Honduras
to London. Ship sails on her voyage, and, in a few days after, without
adequate cause, arising after the period of her setting sail, becomes so
leaky as to compel the Master to return. Vessel strikes on a reef of rocks,
and is lost. Decided that she was not sea-worthy at the commencement
of the risk.]
This was a question of insurance upon the cargo of the ship Midsummer Blossom,
of which the Respondent was owner. The vessel was lost in November, 1801, on a
voyage from Belize river, in Honduras, to London ; and the question was, Whether
the ship was or was not sea-worthy at the time when she undertook to perform the
voyage [337] homeward ' The risk insured by the Appellants (underwriters) was,
at and from Honduras to London.
The underwriters having refused to settle the loss, the owner raised an action
against them in the Admiralty Court ; and after a variety of proceedings, and the
production of several documents in regard to the state of the ship at different times,
the Judge Admiral pronounced in favour of the underwriters, Finding that the
ship or vessel in question, the Midsummer Blossom, was not sea-worthy when she
sailed from Honduras on the voyage insured, and that therefore the policy was
null and void, etc. etc. This judgment having been brought under review of the
Court of Session, in the form of an action of reduction, the Lord Ordinary appointed
a special condescendance of the reasons of reduction to be given in. This having
been accordingly done, he pronounced an interlocutor in favour of the owner, being
of opinion that there was no evidence, express or presumptive, that the vessel in ques-
tion was not sea-worthy at the commencement of the risk. The underwriters
reclaimed to the whole Court ; but the Court adhered to the Lord Ordinary's inter-
locutor, and thereupon the underwriters appealed.
It was admitted, that the vessel had not been thoroughly inspected, and ascer-
tained to be sea-worthy, immediately before sailing on the voyage in which she was
lost, and therefore her sea-worthiness, or the contrary, at that time, could not
be directly proved. The case therefore rested upon indirect and presumptive evidence,
arising from the [338] general state of the vessel, and events and circumstances of
the voyage.
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