from average, or a partial loss, it seems to be the principal question in this case, whether the ship brought into Dover Pier, there condemned as being rotten, divided into lots, and sold, will be considered in the agreement or wager, as a total loss? And to enforce to the contrary, the defendant remarks, that there was no loss at sea, no capture, but a deliberate act done by the owner, upon a regular survey, which occasioned her being broke up, not by reason of the damage she had received, but from the rottenness of the principal parts of her works. Verdict for the plaintiff. Agreeably to this decision, Earl Mansfield in delivering his opinion, in a late case concerning neutral property, by way of illustration of his argument, referred to a similar point of law; the question being, whether a ship warranted in the policy to be neutral property, is deemed to be continued so during the whole voyage. Which was determined in the negative. "So," added his Lordship, "by an implied warranty every ship must be tight, staunch, and strong; but it is sufficient if she be so at the time of her sailing. She may cease to be so in twenty-four hours after her departure, and yet the underwriters will still continue liable. The warranty is that things stand so at the time, not that they shall continue." A ship is presumed not to have been seaworthy, unless it be made appear that her disability arose from sea damage or other misfortune. Marsh. 365. Jon. Coll The plaintiffs having received orders from Mr. John Jones, of Boston in New Eng- Lane and land, to make some insurance for him on the Reprisal, Captain Gowen, and also on her Caswall v. goods and freight, at and from Cape Fare, in North Carolina, to Bristol; underneath yer, jun. the policy for the ship only was inserted the subsequent words or declaration, viz. The following insurance is on the ship only, valued at the sum insured, on which part the Term, defendant underwrote 100l. The ship sailed from Cape Fare, with a cargo of pitch, tar, &c. in prosecution of her voyage for Bristol, and got within one hundred and fifty leagues to the westward of Cape Clear in Ireland, where she was attacked and taken by three French ships, bound for Newfoundland, where they carried her and her cargo to a French port, called Carpoon, after having first taken out all her men, and dispersed them aboard their own ships. On their arrival at the aforesaid port, the captors took out all her pitch, being two hundred and three barrels, some tar, what rice was aboard, &c. and after detaining her about three or four weeks in the said port, the captors offered Captain Gowen his ship, and remaining cargo for 9500 livres, about 4251. sterling, which he accepted, and became the purchaser thereof on those terms, leaving his son as an hostage for the payment of the ransom.* The ship departed from Carpoon for Bristol, and on her voyage met with very bad weather, which broke her rudder, and was forced to put into Appledore in Devonshire, the first port they could make with safety; where the captain, first and second mates, boatswain, and a foremast-man, made a protest on their oaths, giving such an account as the preceding. The captain having purchased the ship and cargo, as before-mentioned, on his arrival at Appledore applied to Mr. Perkins of Bristol, to whom he was consigned by Jones, the owner, who refused to pay the ransom-money, or have any thing to do with ship * By the stat. 22 Geo. 3. c. 25. s. 1. it was declared that no ransom of any ship, &c. taken by an enemy, should be legal, and a penalty of 5001. is incurred by the doing it. This act has expired, but its provisions have been continued by all the subsequent prize acts. See stat. 33 Geo. 3. c. 66. s. 37, 38; 43 Geo. 3. c. 160. s. 34, 35.; and 45 Geo. 3. c. 72. s. 16, &c, now in force. sittings after Hil. 1745, at Guildhall. Jenkins v. zie; sit or cargo; and then the captain came to London to the insurers; and those on the goods empowered and desired him to sell the cargo for what he could, in order, that, if it produced more than the ransom, they might have the benefit; but the insurers on the ship would not intermeddle, or give any direction about it. The captain returned to the ship, and sold that and the cargo jointly, for above 1001. less than the redemption-money, after deducting charges; and he has been obliged to pay, or give security for the remainder, to procure his son's liberty. The ship being thus taken and carried into an enemy's port, where she was detained a considerable time, and had great part of her cargo taken out by the captors, and afterwards meeting with other misfortunes, occasioned her producing less than the ransom-money, and conséquently to prove a total loss, to be made good by the insurer. The preceding is a state of the case, and of the plaintiffs' demands, who think themselves entitled to a total loss, as the policy was valued; but the defendant, on the contrary, pretends that, as part both of the ship and goods were saved, he is entitled to an average, and not subject to an entire loss; but The jury found a verdict for the plaintiffs. The plaintiff made an insurance in London, on the Tryal privateer, fitted out at Macken Bristol, for two calendar months, where the ship might then be, on a cruize, or in any tings after port or place whatsoever or wheresoever; the said ship to be valued at interest or no interest, free of average, and without benefit of salvage. Mich. Term, 1749, at Guildhall, Bout The said privateer being fitted for a cruize, sailed from Bristol on the 29th of May, 1746; and some days after she was met by a French privateer of a superior force, who attacked, and, after a brave defence, took her. She had been in the enemy's hands about eight hours, without their removing any of her men or stores, when Admiral Martin, with his whole fleet, appearing, retook the Tryal; and, hearing of the gallant behaviour both of the captain and crew, they unanimously agreed to give up their salvage to them, and accordingly drew up and signed an instrument for that purpose; and the admiral ordered her to be furnished with all necessaries, and sent a man of war sloop to see her safe into Bristol, where she arrived the latter end of June, being between three or four weeks before the insurance expired. These circumstances, the plaintiff thinks, entitles him to a total loss, as the was overset, and the policy being on interest or not, will admit of no average. voyage The defendant agrees to the last assertion; but, for that very reason insists, he has no loss to pay, as he is free from a partial one, and there can be no total one where the ship is arrived, and, as he insists, might have been fitted out again before the limited term of the two months expired, had the owners not determined the contrary; and, besides, though the ship was taken, yet as she was never carried infrà præsidia of the enemy, or was so taken as to be beyond a possibility of a re-capture, and having returned to Bristol so long time before the two months expired as was sufficient to refit her in, the defendant supposes that the neglect of the owners ought not to be imputed to the underwriters, more especially as several ship-builders attended to prove there was time enough, as several merchants did to give their opinion with regard to the loss. Verdict for the plaintiff. If the object of the voyage be lost, it is sufficient to give the plaintiff a right to recover as for a total loss. Per Lawrence J. 6 T. R. 425. The plaintiff was owner of the ship Love and Unity, which he let out to freight to Lower v. one Bateman Humphrys, for a voyage to Lisbon and back again; and the freighter was by charterparty obliged to victual and man her, which he did accordingly, putting in Wilmer; sittings 1747, at the master and crew, and, embarking himself, proceeded on his voyage, and arrived after Ha. safe at Lisbon. He delivered the outward-bound cargo, and put the ship up for Lon-Term, don, in hopes of getting a freight home; on advice of which, the owner and plaintiff Guildhall. got her insured, "at and from Lisbon to Gravesend, warranted to sail with the convoy." The freighter, being at Lisbon, meditated a fraud; which iniquitous scheme he perpetrated in the following manner, viz. he made up rolls of lead about the size of moidores, six and thirties, and three pound twelves, packed up, and sealed, as such monies are usually packed up and sealed, and made packages likewise in imitation of those of diamonds, and then sent them on board. He took bills of lading from the captain, as for real money and diamonds, sent those bills of lading home to different merchants, and drew considerable sums upon the credit of them, as well as made large insurance, in order, as is supposed, to have lost the ship in the voyage home, and make the insurers pay as though such effects had actually been on board; but the captain, as it is imagined, suspecting something of the fraud before the ship sailed, opened one or more of the packages, and discovered the cheat, finding nothing but lead and glass, instead of gold and diamonds; of which he giving information to the English consul there, the freighter ran away, and the captain and crew left the ship, the captain coming to England. The plaintiff, on knowing what had occurred, by the master's arrival, immediately applied to the insurers, and desired them to send to Lisbon for the ship, or furnish him with money to go and fetch her; but they were of opinion, and accordingly acquainted him so, that as the ship was at the port she was insured from, aad had not proceeded on her voyage, it was the business of the owner, not the insurers, to find master and mariners to navigate her; the consequence of which was, that the ship lay there neglected till she was broke to pieces, whereupon the plaintiff brought this action for the recovery of a total loss. The defendant thinks himself not obliged, as he presumes the words in the policy, at and from, can only mean to give the ship leave to stay at the port a reasonable time to procure a lading, and take it in, and not to lie there till she rots, without attempting the voyage; as this would be to make the insurer at all events liable, sooner or later, whereas he supposed he undertook a risk for two or three months only. But, I presume, the underwriters would be obliged by the barretry of the master and sailors, as I imagine the act of deserting the ship would be construed, and therefore, abstracted from all other arguments, would on this point only be condemned. Verdict for the plaintiff. Barretry may be committed either by desertion of the ship, by wilful deviation, in fraud of the owner, by running away with the ship, by sinking her, or by defeating, or delaying, the object of the voyage with a criminal intent. See the cases of Vallies v. Wheeler, Cowp. 143; Earle v. Rowcroft, 8 East. 134; and see Marshall on Ins. 442 to 460. Brogden; The plaintiff in the present case brought an action against the defendant, for an Elton v. insurance this latter underwrote on the Mediterranean, at and from Bristol to New-sittings foundland, the ship valued at the sum insured, without further proof of interest than the after Hil. policy. Term, 1746, at 2 Stra, It appeared upon the trial of this cause, that the plaintiffs, who were merchants at Guildhall. Bristol, were owners of the ship in question, and had sent her out upon a voyage 1264. from thence to Newfoundland; that she carried with her a letter of marque, and in her voyage met and took a French ship, which she brought back to Bristol; that she 30 VOL. I. 1 Pelly v. Exchange 341, at soon set out again upon the same voyage, and took another prize, which she also re turned with. Upon the ship's coming back, the plaintiffs applied to the insurers for a return of part of the premium, which was ten guineas per cent. in regard they had not run so much risk as if the ship had proceeded the whole voyage, and the insurers returned three per cent. A new policy was made for the voyage now under consideration, in the same manner and on the same terms as the last, and the ship set out on her voyage, and took another prize.- -The captain, who was the plaintiff's only witness, said, their directions to him for the preceding voyages were, that in case he took any thing to return with it to Bristol, or not, as he should think proper; but in this last voyage their directions were, if he took any thing, to send it home by part of the crew, and with the other part to proceed on the voyage; and that he would have done so, but the sailors, after the capture, would not proceed on the voyage, but would return to take care of her to Bristol; and that all the crew, except the mate, surgeon, and one other, were of this mind, and swore if the captain would not go back, they would not touch a rope, nor do the least thing towards navigating the ship; on which the captain was forced to comply, and set his ship homeward, as guard or convoy to the prize; that in going back to Bristol, the Mediterranean was taken, though the prize got in safe, and for this loss the plaintiffs brought their action. On the part of the defendant it was insisted, that this was a deviation for the benefit of the assured, and that the insurers were therefore discharged. It appeared on the captain's evidence, that the plaintiffs had given a part of all prizes to the captain and ship's crew; and that it was for the care and protection of this prize, which made the sailors insist to go back with her, which was the first cause and ground for the deviation, and therefore, and for that the plaintiffs were likewise themselves to be greatly benefited by the prize, the defendant insisted he should not pay. But it appearing also from the evidence of the captain, that his orders for this voyage were positively to proceed, notwithstanding any capture he should make, and that he would have done so, if he could have prevailed on the sailors, and that his returning was wholly owing to their refusal to proceed, and his incapacity to go on without them, the Lord Chief Justice and the jury were of opinion with the plaintiffs, and the jury brought in their verdict accordingly. Necessity will always excuse a deviation; and the cases of necessity most commonly adduced to justify a departure from the direct course of the voyage insured are stress of weather, (1 T. R. 22.) want of necessary repair, (1 Atk. 545. Park. 301.) joining convoy, (2 Salk. 445. 2 Stra. 1265. Cowp. 601.) escaping from or avoiding an enemy, and mutiny of the crew; which last evidently appears to be a good excuse for deviation, by the above case of Elton v. Brogden. The plaintiff being part owner of the ship Onslow, an East India ship, then lying in the Thames, and bound on a voyage to China, and back again to London, insured it at the Royal and from London to any ports and places beyond the Cape of Good Hope, and back to London; free from average under ten per cent. upon the body, tackle, apparel, ordnance, Burrow, ammunition, artillery, boat, and other furniture of and in the said ship: beginning the Guildhall, adventure upon the said ship, from and immediately following the date of the policy; 1, and so to continue and endure until the said ship, with all her ordnance, tackle, and apparel, shall arrive as above, and hath there moored at anchor twenty-four hours in good safety. And it shall be lawful for the said ship, in this voyage, to proceed, and sail to, and touch, and stay at any ports or places whatsoever, without prejudice to this assurance. The perils mentioned in the policy are the common perils, viz, of the 1757. seas, men of war, fire, enemies, pirates, &c. and all other perils, losses, and misfor tunes. The ship sailed, and arrived in the river Canton in China, where she was to stay, to clean and refit, and for other purposes. Upon her arrival there, the sails, yards, tackle, cables, rigging, apparel, and other furniture, were by the captain's order taken out of her, and put into a warehouse or storehouse, called a bank-saul, built for that purpose on a sand-bank, or small island, lying in the said river, near one of the banks called Bank-Saul Island, about 200 or 220 yards in length, and 40 or 50 yards in breadth, in order to be there repaired, kept dry, and preserved till the ship should be keeled, cleaned, and refitted. Some time after this, a fire accidentally broke out in the bank-saul belonging to a Swedish ship, and communicated itself to another bank-saul, and from thence to the bank-saul belonging to the Onslow, and consumed the same, with all the sails, yards, tackle, cables, rigging, apparel, and other furniture belonging to the Onslow, which were therein. The question in this case was, whether the insurers were liable to answer for this loss, so happening upon this bank-saul, within the intent and meaning of this policy? It was stated, that it was the universal and well-known usage, and had been so for a great number of years, for all European ships which go a China voyage, when they arrive near this Bank-Saul Island in the river, to unrig the ship, &c. and to act in every respect as captain Pelly had done; and that the so doing was prudent, and for the common benefit of the owners of the ship, the insurers and insured, and all persons concerned in the safety of the ship. It was objected, that this was not a loss by sea, but at land. But it was answered, that the loss being upon a sand-bank in the river, and in the only port where the English can clean and refit their ships, it was a loss at sea, and the policy expressing an insurance from fire, it was to all intents within the meaning thereof; and a verdict was given for the plaintiff, subject to the opinion of the Court of King's Bench; and Lord Mansfield afterwards delivered the opinion of the court, confirming the said verdict. Where a ship, having been chased by an enemy of superior force, and the captain, in order to prevent her from falling into the hands of the enemy, set her on fire, it was holden that this loss was covered by the policy, and that it was immaterial whether it was occasioned by a common accident, or by lightning, or by an act done in duty to the state. Gordon v. Rimington, 1 Campb. C. N. P. 123. Of Re-Assurance and Double Insurance. Re-Assurance, as understood by the law of England, may be said to be a contract, which the first insurer enters into, in order to relieve himself from those risks which he has incautiously undertaken; by throwing them upon other underwriters, who are called re-assurers. This species of contract has obtained a place in most of the commercial systems of the trading countries of Europe; and it is allowed by them, at this day, to be politic and legal: and the law of England adopted this regulation, and permitted the underwriters upon policies to insure themselves against those risks for which they had inadvertently engaged to indemnify the insured; or where, perhaps, they had involved themselves to a greater amount than their ability would enable them to discharge. But though such a contract seems perfectly fair and reasonable in itself, and might be productive of very beneficial consequences to those concerned in this important branch of trade, yet, like many other useful institutions, it was so much abused, and turned to purposes so pernicious to a commercial nation, and so destructive of those very benefits it was originally intended to promote and encourage, that the legislature |