152 Jarque Vs Smith Bell

JARQUE VS SMITH, BELL & CO., LTD., ET AL and Countermart, Surprisals, and Takings at Sea.
and Countermart, Surprisals, and Takings at Sea. Arrest, Restraint and Detainments,
G.R. No. L-32986 November 11, 1930 of all Kings Princes and People of what Nation, Condition or Quality so ever;
Barratry of the Master and Marines, and of all other Perils, Losses and Misfortunes,
FACTS: that have or shall come to the Hurt, Detriment, or Damage of the said Vessel or any
part thereof; and in case of any Loss or Misfortunes, it shall be lawful for the
 The plaintiff was the owner of the motorboat Pandan and held a
Assured, his or their Factors, Servants, or assigns, to sue, labour and travel for, in
marine insurance policy for the sum of P45,000 on the boat, the and about the Defense. Safeguard, and recovery of the said Vessel or any Charges
policy being issued by the National Union Fire Insurance Company whereof the said Company, will contribute, according to the rate and quantity of
and according to the provisions of a "rider" attached to the policy, the sum herein assured shall be of as much force and Virtue as the surest Writing or
the insurance was against the "absolute total loss of the vessel Policy of Insurance made in LONDON. Attached to the policy over and above
only." the said clause is a "rider" containing typewritten provisions, among which
 On October 31, 1928, the ship ran into very heavy sea off the Islands appears in capitalized type the following clause: AGAINST THE ABSOLUTE
of Ticlin, and it became necessary to jettison a portion of the cargo. TOTAL LOSS OF THE VESSEL ONLY, AND TO PAY PROPORTIONATE SALVAGE
As a result of the jettison, the National Union Fire Insurance CHARGES OF TEH DECLARED VALUE . At the bottom of the same rider following
Company was assessed in the sum of P2,610.86 as its contribution the type written provisions therein set forth are the following words:
to the general average. "Attaching to and forming part of the National Union Fire Insurance Co., Hull
 The insurance company, insisting that its obligation did not extend Policy No. 1055." It is a well settled rule that in case repugnance exists
beyond the insurance of the "absolute total loss of the vessel only, between written and printed portions of a policy, the written portion
and to pay proportionate salvage of the declared value," refused to prevails, and there can be no question that as far as any inconsistency
contribute to the settlement of the general average. exists, the above-mentioned typed "rider" prevails over the printed clause
 The present action was thereupon instituted, and after trial the it covers.
court below rendered judgment in favor of the plaintiff and ordered
the defendant National Union Fire Insurance Company to pay the 2. NO. In the absence of positive legislation to the contrary, the liability of
plaintiff the sum of P2,610.86 as its part of the indemnity for the the defendant insurance company on its policy would, perhaps, be limited
general average brought about by the jettison of cargo. to "absolute loss of the vessel only, and to pay proportionate salvage of the
declared value." But the policy was executed in this jurisdiction and
ISSUES: "warranted to trade within the waters of the Philippine Archipelago only."
(1) Whether the lower court erred in disregarding the typewritten clause Here the liability for contribution in general average is not based on the
endorsed upon the policy, Exhibit A, expressly limiting insurer's liability express terms of the policy, but rest upon the theory that from the relation
thereunder of the total loss of the wooden vessel Pandan and to of the parties and for their benefit, a quasi contract is implied by law. Article
proportionate salvage charges? NO 859 of the Code of Commerce: The underwriters of the vessel, of the freight, and
(2) Whether the lower court erred in concluding that National Union Fire of the cargo shall be obliged to pay for the indemnity of the gross average in so far
Insurance Company is liable to contribute to the general average resulting as is required of each one of these objects respectively. The article is mandatory
from the jettison of a part of said vessel's cargo? NO in its terms, and the insurers, whether for the vessel or for the freight or
for the cargo, are bound to contribute to the indemnity of the general
HELD: average. And there is nothing unfair in that provisions; it simply places the
1. NO. The insurance contract, Exhibit A, is printed in the English common insurer on the same footing as other persons who have an interest in the
form of marine policies. One of the clauses of the document originally read vessel, or the cargo therein at the time of the occurrence of the general
as follows: Touching the Adventures and Perils which the said National Union Fire average and who are compelled to contribute. In the present case it is not
Insurance Company is content to bear, and to take upon them in this Voyage; they disputed that the ship was in grave peril and that the jettison of part of the
are of the Seas, Men-of-War, Fire, Pirates, Rovers, Thieves, Jettison, Letters of Mart
cargo was necessary. The jettison was therefore as much to the benefit of
the underwriter as to the owner of the cargo.
The appealed judgment is affirmed with the cost against the appellant.

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JARQUE VS SMITH, BELL & CO., LTD., ET AL and Countermart, Surprisals, and Takings at Sea.

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