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.

Wilson and Company
v.
Elliot

Date: 7 March 1776
Case No. No 17.

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Wilson wanting to insure a cargo of tobacco from Carron to Hull, wrote to his broker, desiring him to insure on his account, p. the Kingston from Carron to Hull, with liberty to call as usual, fourteen hogsheads of tobacco, value L. 539. The broker presented this order to an underwriter, who refused to sign with the general clause of calling as usual; but on the clause being altered thus, “with liberty to call at the Port of Leith,” he signed it. The ship did not call at Leith, but at Morison's haven, six miles distant, where she took in goods, returned to her direct course, and was totally wrecked off Holy Island. The lords, on the ground that Morison's haven was so near, that it could scarcely be called a deviation, and that the vessel actually returned into her proper course, whence the underwriters had in reality suffered no detriment, found the latter liable for the assured sum. But this judgment was reversed, on appeal.

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