SECTION VI.-Insurable Interest of Captors. No ships belonging to a civilized nation have any right to capture the vessels of other nations, except as they are authorized by their government to do so. Nor, if authorized to make prizes, have they any other interest in the property captured than such share of its proceeds, if it be condemned and sold, as the law gives them. For this share they have an insurable interest in the captured property.2 1 "The sole and exelusive right to all prizes rests in the government, and no individual can acquire any interest therein, unless under their grant and commission; and all captures, therefore, made without such grant and commission, enure to the use of the government, by virtue of its general prerogative." Per Story, J., in The Joseph, 1 Gall. 558. See also The Elsebe, 4 Chr. Rob. 408; Routh v. Thompson, 11 East, 428; S. C. 13 East, 274; Nicol v. Goodall, 11 Vesey, 157. * See the Omoa case, Le Cras v. Hughes, 3 Doug. 81. Lord Mansfield gives the following reasons for deciding that the captors had an insurable interest in the captured property: "The question whether the sea-officers had an insurable interest depends, 1. on the prize act and proclamation; or, 2. putting the act and proclamation out of the case, on the possession, and on the expectation warranted by almost universal practice. The first is the strongest ground, because it gives an interest which will support an action. But, second, is the expectation a sufficient interest? Wherever a capture has been made, since the Revolution, by sea or land, the crown has made a grant; there is no instance to the contrary. Then, is the contingency of the ship's coming home a risk which the captors may provide against? It has been properly said, that, since the statute of Geo. II., insurance is a contract of indemnity. An interest is necessary, but no particular kind of interest is required. In Grant v. Parkinson, the profits of a voyage, though not a vested interest, were held insurable. An agent of prizes may insure his profits, though they are in contingency; such an insurance prevents risks from neutral claims; it also guards against a loss arising from the disappointment of an expectation which hitherto has never been disappointed. On either ground I think the policy is a good one." Lord Eldon dissents from the opinion of Lord Mansfield as to the point that the mere expectation of a grant from the crown could amount to an insurable interest, and thinks that the right of the captors to insure might be put on other grounds. "The captors," says this distinguished judge, in Lucena v. Craufurd, 2 Bos. & Pull. N. R. 228, "not only had the possession, but a possession coupled with the liability to pay costs and charges, if they had taken possession improperly, and also a liability to render back property which should turn out to be neutral." In Boehm v. Bell, 8 T. R. 154, Lord Kenyon adopts the doctrine of Lord Eldon as above stated. In this case a captured ship, which had The laws of all civilized states require certain conduct of captors, and a certain amount of care of the property, and hold them to some responsibility for it. For this responsibility they have an insurable interest, much in the same way as other responsible bailees.1 The insurable interest of captors, prize agents, and others in the captured property has come before the English courts for adjudication during their many wars.2 By these cases many principles were determined which would undoubtedly have great weight with the courts of this country, should similar questions come before them. The earliest question was, whether the captors had an insurable interest in the prizes, when they had no interest in them by statute, but strong reasons to expect a grant from the crown. Lord Mansfield said: "The crown always makes the grant, and there is no instance to the contrary," and on this ground held that their expectation of receiving the property captured was sufficiently certain to found an insurable interest. Lord Eldon,4 Lord Ellenborough, and Tindal, C. J.6 doubt this doctrine, but can scarcely been insured by the agents of the captors, was, by a decree of the Court of Admiralty, restored to her owners; and the captors claimed a return of premium. The court refused their claim. Lord Kenyon said: "The assured had possession of the captured property, and from that possession certain rights and duties resulted. If it was a legal capture, the captors were entitled; if the capture was improperly made, they were liable to be called to account in the courts of admiralty, where they might be amerced in damages and costs. It was important to them to take care that there should be something forthcoming to answer the amount of these damages; on this ground, therefore, I am clearly of opinion that the assured had an insurable interest." 1 See opinion of Lord Kenyon in Boehm v. Bell, 8 T. R. 154, supra. 2 The first case was that of Le Cras v. Hughes, or the Omoa case, reported in 3 Douglas, 81, and alluded to by Park, 406. A statement of the law, as laid down by Lord Mansfield in this case, will be found in a preceding note. In this case, the sea and land forces had jointly captured the fort of Omoa and certain Spanish vessels lying under its walls, one of which ships was laden with captured property and insured on account of the officers and crew of the ships under Captain Luttrel "at and from Omoa to London." She was lost on her homeward voyage by perils of the sea. Judgment in this case was delivered May 3, 1782. The case of Boehm v. Bell, also alluded to supra, was decided February 8, 1799. Le Cras v. Hughes, 3 Doug. 86. Lucena v. Craufurd, 2 Bos. & Pull. N. R. 323. 370. Routh v. Thompson, 11 East, 434. be regarded as distinctly overruling it. It may be inferred from all the cases that such a mere expectation of the future grant from the crown would give an insurable interest, provided the practice and usage of making such grants could be shown to be so long and uniform as to leave no reasonable doubt that the grant would be made. Here it will be seen that an insurable interest is founded upon an expectancy which rests neither on vested title, nor on contract, nor on law, but is strengthened otherwise until it has force enough to give this interest. In speaking of Lord Mansfield's doctrine, Lord Eldon suggests a very different ground on which they had an insurable interest. It is, that they had possession, and by this possession were liable to pay costs and charges, and a further liability to return the property, provided it should turn out that there was no sufficient reason for its condemnation.1 The principle thus stated by Lord Eldon had been not long before adopted and applied by Lord Kenyon in a case which came before him. Three English captains had captured an American ship and her cargo as a Dutch prize, and had given notice to their agents in England, who made insurance on the property for them. The American owners claimed this property in the English Admiralty, and it was restored to them, with the exception of a small part of the cargo that was condemned. The captors then claimed of the insurers a return of so much of the premium as belonged to the ship, and that part of the cargo which was restored. Lord Kenyon refused their claim, on the ground that certain rights and duties and liabilities had resulted from their possession of the property; that they might be amerced in the courts of admiralty in damages and costs; and "it was important to them to take care that there should be something forthcoming to answer the amount of these damages." And therefore they had an insurable interest in the whole property.2 An interesting case arose in this way. In the year 1794, Holland was occupied by the French, with whom the English were then at war. And the English government, on the expectation of war, by an order in Council, in February, 1795, directed that all Dutch ships should be seized, brought into England, and there detained. The king was empowered to appoint commissioners for the care Lucena v. Craufurd, 2 Bos. & Pull. Boehm v. Bell, 8 T. R. 154. N. R. 323. and management of these ships and cargoes. Such commissioners were appointed; and they caused an insurance to be made upon certain ships and cargoes captured under this order in Council. The ships and cargoes were totally lost on their way to England. The case was first tried before the Court of King's Bench in 1798, then before the Exchequer Chamber in 1802, then before the House of Lords in 1806, again before the King's Bench in the same year, and was finally disposed of by the House of Lords in 1808. Many questions arose and were discussed; but by far the most important question was, whether the commissioners had an insurable interest in the ships and cargoes insured before their arrival in England. It is impossible to draw from the case a positive and unquestionable answer to this question, although the plaintiffs finally recovered. It may be said, however, that a majority of all the judges in the different tribunals thought the commissioners had an insurable interest, on the ground "that an inchoate interest, though imperfect till a given contingency shall take place, is nevertheless insurable." But very high authorities thought otherwise; Lord Eldon declaring that he could not point out an insurable interest, "unless it be a right in the property, or a right derivable out of some contract about the property."1 1 Lucena v. Craufurd, 2 Bos. & Pull. N. R. 323. This case occupied the attention of the English courts for more than eight years, and, as Mr. Arnould well says, "in the House of Lords gave rise to one of the most elaborate and ingenious legal discussions ever raised upon a point of maritime law." As stated in the text, the English government, by an order in Council of February, 1795, directed that all Dutch ships bound to and from the ports of Holland should be seized, for the purpose of being brought into English ports and there provisionally detained. The reason for this order was the fact that, in the course of the previous year, Holland had been overrun by the armies of the French Republic, with whom England was then at war, and it appeared highly probable that her reduction to French subjection would be permanent. With a view to provide for the custody of ships that might be brought in under this order, the king was empowered to appoint commissioners "for the care, management, sale, or other disposition, according to his Majesty's instructions," of such ships and cargoes. On the 15th June, 1795, Craufurd and others were appointed such commissioners. Before this appointment was made, a captain in the English navy had captured a fleet of Dutch merchantmen, homeward bound from the African coast, and carried them into St. Helena for the purpose of being further carried to England. Accordingly, on the 2d of July, four of these ships, with their Dutch cargoes on board, sailed from St. He There was then another case of somewhat similar character founded on occurrences which took place under a similar order of lena, and on the 22d of August, Craufurd and his co-commissioners, having received notice to that effect, caused an insurance to be effected on these ships and cargoes on their own account, under the style of "The Honorable Commissioners for the Sale of Dutch Property." All of these ships were totally lost. One of them, however, was not so lost till after the 15th day of September. This date is important, because on that day a proclamation of reprisal, or, in other words, a direct declaration of war, was made by the King of England against the ships, goods, and subjects of the United Provinces. Upon the loss of the ships becoming known, Craufurd and his co-commissioners brought an action upon the policy. The main question in the case was, whether the plaintiffs, under the circumstances, had an insurable interest, under their commission, in the ships and cargoes insured before their arrival in England. In the declaration, interest was averred in the first count to be in Craufurd and his associates as commissioners; in the second count, to be in the crown. In the Court of King's Bench, Lord Kenyon and the rest of the judges held that the plaintiffs had an insurable interest sufficient to sustain the first count in the declaration, and judgment was accordingly given for the plaintiffs for the whole sum. The case was here known as Craufurd v. Hunter, and is reported in 8 Term Reports, 18. Under the name of Lucena v. Craufurd, this decision was affirmed in the Exchequer Chamber in 1802, by a majority of the judges, Mr. Justice Chambre dissenting in a very forcible opinion. The report may be found in 3 Bos. & Pull. 75. “The grounds," says Mr. Arnould, “on which the majority founded their judgment were substantially the same with those which had prevailed with the Court of King's Bench, and rested on the principle that an inchoate interest, though imperfect till a given contingency shall take place, is, nevertheless, insurable." Mr. Justice Chambre thought that the powers of the commissioners were confined to the care of ships actually brought into the ports of the United Kingdom and provisionally detained there; and that in this case the commissioners had no power, because the case of the vessels was not one of compliance with this condition. The case then came before the House of Lords (2 Bos. & Pull. N. R. 269 - 298), when eight of the judges held that the plaintiffs had an insurable interest, upon the same grounds as before. Mr. Justice Chambre adhered to his former opinion, which was supported by Mr. Justice Lawrence, by Lord Eldon, and by Lord Erskine. Lord Ellenborough also seems, by his known course in subsequent decisions, to have been of concurrent opinion. Upon the advice of Lord Eldon, the case was sent down for a new trial under a venire de novo, on the collateral ground that, as one of the ships had not been lost till after the 20th of September, the finding of the jury, inasmuch as it gave general damages partly made up of the average loss on this ship, which ought not to have entered into it, was erroneous. On the trial, before Lord Ellenborough, a verdict was found for the plaintiffs upon the second count of the declaration, |