The vessel owned by the plaintiff went down with 27 people on board. The events surrounding the sinking were unknown. The plaintiff sought a declaration that the defendant insurer was obliged to indemnify the plaintiff in respect of the loss. The vessel was insured for loss due to ‘perils of the sea’.
DECISION: Action dismissed.
HELD: If it is was known that the vessel was seaworthy when she set out and she disappeared with crew, then on the balance of probabilities she must have sunk, and on the balance of probabilities the sinking must have been due to the perils of the sea. If the vessel is not shown to be seaworthy when she left on her last voyage, the presumption does not apply since it cannot be held on the balance of probabilities that her presumed sinking was due to perils of the sea rather than to her unseaworthy condition. The plaintiff was unable to prove on a balance of probabilities that the vessel was seaworthy when she set out on her last voyage. The court dismissed the action on this point, but went on to consider the defendant’s other claims.
The non-disclosure of material facts will void insurance coverage where the nondisclosure of the material fact has induced the insurer to assume the risk. In this case the vessel had taken on water and there had been substantial work done to the hull after the issuance of the safety certificate which the insured had supplied to the insurer and before the issuance of insurance. The insured had also applied to increase the passenger load form 20 to 25 and this also was not known to insurer. The court found these to be material facts which had not been disclosed to the insurer and would have voided coverage.
The court also found that the insured had breached express warranties in the policy. The express warranties must be exactly complied with whether material to the risk or not. In this case the plaintiffs had not complied with the strict manning of vessel requirements.