"and that certain of the slaves, mentioned in the declaration, "perished for want of water." The facts appearing in evidence were, that the ship, being bound from Guinea to Jamaica, had missed the island, and the crew were reduced to great distress for want of water: that the captain consulted with the crew, and it was unanimously agreed upon that some of the slaves should be thrown overboard, in order to preserve the rest: that at the time this resolution was formed, there remained but one day's full allowance of water, at two quarts per man. The jury, upon this evidence, found a verdict for the plaintiff, with damages at 30l. a head for every slave thrown overboard.

A motion was afterwards made for a new trial, upon the ground that this was not a loss by perils of the sea.

Lord Mansfield. "This is a very uncommon case, and deserves a further consideration. There is great weight in the objection, that the loss is stated, by the declaration, to have arisen from the perils of the sea, and that the currents, &c. had made the ship foul and leaky. Now, does it appear by evidence that the ship was foul and leaky? On the contrary, the loss happened by mistaking Jamaica for another place. Besides, a fact has been mentioned by the counsel of throwing some overboard after the rain fell, a fact which is not agreed on by both sides, though a very material one."

Mr. Justice Buller. "The declaration does not, in any part of it, state the loss which has been the occasion of this demand; and it would be very mischievous if we were to overturn this objection. Suppose, for a moment, that the underwriters, in some cases, are liable for the mistake of the captain, yet, if they are not liable in others,. the nature of the loss must be stated in the declaration, that the defendant may have an opportunity of moving in arrest of judgment, if it be not sufficiently alleged. But it would be impossible for the defendant in this case to move in arrest of judgment: for the facts of the case, as proved, are different from those stated in the declaration. The point of law in arrest of judgment can only be argued from the facts stated on record; and the declaration in this case states the loss of the plaintiff to have

hap

happened by perils of the sea." The rule for a new trial was made absolute, on payment of costs.

A loss occasioned by another vessel running down the ship Smith . insured is a peril of the sea.

Scott,
4 Taunt.

126.

Butler,

The Court of King's Bench have been of opinion, that Cullen v. where a vessel was sunk at sea, by another vessel firing upon M her, mistaking her for an enemy, if not a peril of the sea, as 57 G. 3. some of the judges thought, was a loss within the policy, as being a peril, loss and misfortune, under the general words of the policy, sustained in the course of her navigation on the

sea.

6 Term

Rep. 656.

In an insurance upon slaves against perils of the sea, their Tatham v. death by failure of sufficient and suitable provision, though Hodgson, that failure was occasioned by extraordinary delay in the voyage from bad and stormy weather, was holden not to be a loss within the policy by perils of the sea, but a loss by natural death, which cannot now be insured against since the statutes for regulating the manner of carrying slaves in British vessels from the coast of Africa, by which it is provided, that no loss 30 G. 3. or damage shall be recoverable on a policy on account of the mortality of slaves by natural death or ill treatment, or against loss by throwing overboard of slaves on any account whatsoever, &c.

In an action on a policy of insurance at and from Saint Bartholomew to the coast of Africa, and during her stay and trade there and back to Saint Bartholomew, it was attempted, under a count for a loss by perils of the sea, to recover for a total loss of the ship, which appeared to have been destroyed by a species of worms which infest the rivers of Africa. An intelligent merchant swore, that he had known many instances of this species of loss, but that the underwriters had invariably refused to pay. Lord Kenyon, upon this evidence, and the unanimous declaration of the jury, decided that it was not a loss by perils of the sea.

If a ship has been missing, and no intelligence received of her within a reasonable time after she sailed, it shall be presumed that she has foundered at sea.

The

c. 33. s. 8. 34 G. 3.

c.

80.

39 G. 3.
c. 80. s. 24.

Rohl v.

Parr, Guilt

hall, Sitt.

after Hil

1796.

Green v.
Brown,
2 Stra.
1199.

Newby v.

Read, Sittings after Michaelmas, 3 G. 3.

The ship Charming Peggy was insured in 1739, froin North Carolina to London, with a warranty against captures and seizures, and in an action the loss was laid in the declaration to be by sinking at sea. All the evidence given was, that she sailed out of port on her intended voyage, and had never since been heard of. Several witnesses proved, that in such a case, the presumption is, that she perished at sea, all other sorts of losses being generally heard of. It was insisted for the defendant, that as captures and seizures were excepted, it lay upon the plaintiff to prove, that the loss happened in the particular manner declared on. But Lord Chief Justice Lee said, it would be unreasonable to expect certain evidence of such a loss, where every body on board is presumed to be drowned and all that can be required is the best proof the nature of the case admite of, which the plaintiff has given. He therefore left it to the jury, who found according to the plaintiff's declaration.

The same doctrine was held in a more modern case before Lord Mansfield. It was an action of covenant on a deed, in the nature of a policy of insurance, by which the defendant was bound to insure against any loss happening before the 30th of November 1762, free from average. The ship sailed from Newcastle to Copenhagen, which is usually about ten days' voyage. She was soon after taken by a French privateer, but ransomed; and she then proceeded on her voyage to Copenhagen (as was proved by the ransomers) in a bad condition. She was never heard of afterwards, though all due diligence had been used; and several ships, which sailed after her, were proved to have arrived safe at Copenhagen.

Lord Mansfield told the jury, that this evidence was a sufficient ground to presume that she perished at sea, unless the contrary appeared. The jury accordingly found for the plaintiffs.

I have not been able to find any regulation in the law of England, or the usage of merchants, fixing a limited time, within which the assured may demand payment for his loss, in case no accounts arrive of the ship upon which insurance is made. Indeed, from the nature of the thing, what shall be a

reasonable

reasonable time in such cases, must always depend upon a variety of obvious circumstances. I understand, however, a practice has prevailed among insurers, which seems reasonable enough, that a ship shall be deemed lost if not heard of in six months after her departure (or after the time of the last intelligence from her) for any part of Europe; and in twelve months, if for a greater distance. The only objection to such a practice is, that the latter period does not seem sufficient in India voyages. However, that is a matter for the insurer's Salk. 29. consideration; and even if he should pay the money under a mistake, supposing the ship lost when it really is not, he

might, as we shall see hereafter, if the insured were unwilling Vide poor, to refund, recover it back, in an action for money had and c. 20. received to his use.

In Spain and France, this matter, however, is not left to uncertainty; but the time, within which such losses may be demanded, is fixed and ascertained by express regulations.

By the ordinances of the former, if any ship insured on going 2 Magens, to, or coming from the Indies, is not heard of in a year and 33. a half after her departure from the port where she loaded, it is declared that she is, and shall be deemed lost: by those of the latter it is said, that if the insured receive no news of his ship, he may, at the expiration of a year for common voyages, reckoning from the day of the departure, and after two years for those at a greater distance, make his cession to the underwriters, and demand payment, without being obliged to produce any certificate of the loss.

2 Magens,

177. Ord.

of Lewis 14.

3. art. 58.

2 Burr. 694. 1st point in

Goss v. Withers.

CHAPTER IV.

Of Losses by Capture and Detention of Princes.

CAPTURE, as applied to the subject of marine insurances,

may be said to be a taking of the ships or goods belonging to the subjects of one country by those of another, when in a state of public war. What shall be considered as a capture, so as to render an insurer liable under a policy insuring against captures, has now become a question of very little difficulty. (a)

The law upon this subject is perfectly settled in England, between the insurer and the insured; and it is this, that the ship is to be considered as lost by the capture, though she be never condemned at all, nor carried into any port or fleet of the enemy: and the insurer must pay the value. If, after a condemnation, the owner recover or retake her, the insurer can be in no other condition than if she had been retaken or recovered before condemnation. The insurer runs the risk of the insured, and undertakes to indemnify; he must therefore bear the loss actually sustained, and can be liable to no more. So that if, after condemnation, the owner recovers the ship in her complete condition, but has paid salvage, or been at any expence in getting her back, the insurer must pay 2 Burr. 696. the loss so actually sustained. No capture by the enemy can be so total a loss as to leave no possibility of recovery. If the owner himself should retake at any time, he will be entitled; and by late acts of parliament, if an English ship retake the vessel captured, either before or after condemnation, the owner is entitled to restitution upon stated salvage.

29 G. 2.

c. 34.9.24 33 G. 3.

c. 66. s. 42.

This

(a) The owners of a vessel, who by performing the stipulations of a charter-party, provoke confiscation by the illegal and piratical act of a foreign state, may recover against the insurers, declaring their loss to be by forcible seizure and capture of persons unknown. Sewell v. Royal Exch. Acsur, Co. 4 Taunt. 856.

chance