“Scuttling” — that is, in pleading terms, the “wilful casting away of a vessel with the connivance of her owners” — is as old as marine insurance. The temptation for a few unscrupulous shipowners to dispose of their ships has often proved irresistible. Since “Lloyd’s Law Reports” began publication in 1919 there have been over two dozen reported decisions on “scuttlers”. Ships and freight markets tend to go down together. The most prolific years were the 1920’s when over 15 cases were fought in Court; in the 1930’s there were about 10 reported cases. Since the 1939-45 world war two cases, The TROPAIOFOROS 1 and The GOLD SKY 2 have reached the Courts in London and, during the same period, there have been two cases in the United States: The PADRE ISLAND 3 and The VAINQUEUR 4.

In all four of these cases underwriters have been successful. The overall “scoreboard”, taking all the cases reported in “Lloyd’s Law Reports” since 1919, shows that underwriters were successful in over 70 per cent. of the cases fought out in Court. To put these statistics into perspective, however, one has to take into account that (according to figures quoted by Roskill, L. J., in The SAGEORGE 5) in the last 15 years Lloyd’s Underwriters Claims Office alone handled some 5,738 total loss claims (excluding reinsurance cases) of which less than 20 reached the stage of an order for ship’s papers.

In the last year or two there has been a flurry of litigation on the procedural aspects of “scuttling” cases. For about 200 years marine underwriters have had two advantages in “scuttling” cases. Firstly, underwriters were not required to give “particulars” in their defence. It was sufficient if, in a few brief paragraphs, the defendant underwriters put the plaintiff to proof of loss by insured perils and alleged that the vessel was wilfully cast away with the connivance of her owners (see Coulouras v. British General Insurance Co., Ltd. 6 and Societe d’Avances Commerciales v. Merchants’ Marine Insurance Co. 7). This practice has recently been modified by the Court of Appeal in the GOLD SKY 8 and The DIAS 9 where, in both cases by a majority, the Court of Appeal held that, henceforth, underwriters would be required to give particulars of the matters upon which they relied to support a plea that the vessel had been wilfully cast away.