Scottish Court of Session Decisions

Subject_1 INSURANCE.
Subject_2 DIVISION I.

Fault of the Insurer and Shipmaster.
Subject_3 SECT. III.

What deviation sufficient to vacate the policy. - Cui Incumbit onus probandi.

Stevens & Company
v.
Douglas

Date: 20 December 1774
Case No. No 16.

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Douglas, merchant in Glasgow, insured Stevens and Company to the amount of L. 80 on goods by the Belfast trader from Belfast, to Greenock or Port-Glasgow. It was proved that the ship, instead of sailing directly to Clyde, took in goods to be first delivered at Stranraer in Lochryan; and on her way thither she was wrecked near Girvan, in Ayrshire, and totally lost. There was no evidence that the assured was privy to the deviation; and on that ground it was argued that the policy must be valid, and the underwriter must be liable, but he may have recourse against the owner or shipmaster. The Court moved chiefly by the London practice, found, that in order to vacate a policy, it was not necessary that the assured should be accessory to the deviation; it is enough that there was a deviation, or an intention to deviate, partly carried into execution, as was here proved to be the case; and they therefore sustained the defences of the underwriters.

Fol. Dic. v. 3. p. 328. Miller on Insurance.