ABSTRACT
Suing and labouring The expense for procuring a substituted ship is recoverable, if the freight policy does not contain a free from particular average warranty. However, having said that, it is important to recall that, when a substituted ship is procured to carry the cargo to its proper destination the assured is, in effect, suing and labouring: he is endeavouring to prevent a total loss of freight. In such circumstances, reference has to be made to Kidston v Empire Insurance,100 where the court held that a free from particular average warranty would not prevent a claim for suing and labouring. This principle of law is now embodied in ss 76(2) and 78(1).101 However, it would helpful to quote the relevant part of the judgment of the court on this matter:102
It is to be noted that such an expense is not recoverable, if the policy contains a free from particular average warranty, and does not have a suing and labouring clause. It is interesting to note that there is no suing and labouring clause in the Institute Freight Clauses. Such a loss, therefore, would be recoverable simply as a particular average loss.
