III. 63 carrying flaves in British vessels from the coaft of Africa, by CHA P. which it is provided, that no loss or damage shall be recoverable on a policy on account of the mortality of flaves by natural 30Ge0.111.9 33. f. 8. 34 Geo III. death or ill treatment, or against lofs by throwing overboard of c. 80. 39 Geo. flaves on any account whatsoever, &c. In an action on a policy of infurance at and from Saint Bartholomew to the coaft of Africa, and during her flay and trade there and back to Saint Bartholomew, it was attempted, under a count for a lofs by perils of the fea, to recover for a total lofs of the fhip, which appeared to have been destroyed by a fpecies of worms, which infeft the rivers of Africa. An intelligent merchant fwore, that he had known many inftances of this fpecies of lofs, 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 lofs by perils of the fea. If a hip has been miffing, and no intelligence received of preher within a reasonable time after fhe failed, it shall be fumed that fhe has foundered at fea. III. c. 80. f. 24. Rohl v. Parr, after Hill. 1796. 2 Stra. 1199. The fhip Charming Peggy was infured in 1739, from North Green v. Brown, Carolina to London, with a warranty against captures and feizures, and in an action the lofs was laid in the declaration to be by finking at fea. All the evidence given was, that she failed out of port on her intended voyage, and had never fince been heard of. Several witneffes proved, that, in fuch a cafe, the presumption is, that she perifhed at fea, all other forts of loffes being generally heard of. It was infifted for the defendant, that as captures and feizures were excepted, it lay upon the plaintiff to prove, that the lofs happened in But Lord Chief Justice the particular manner declared on. Lee faid, it would be unreasonable to expect certain evidence of fuch a lofs, where every body on board is presumed to be drowned: and all that can be required is the best proof the nature of the cafe admits of, which the plaintiff has given. He CHAP. He therefore left it to the jury, who found according to the plaintiff's declaration. III. Newby v. Read, The fame doctrine was held in a more modern cafe before Lord Mansfield. It was an action of covenant on a deed, in the nature of a policy of infurance, by which the defendant was bound to infure against any lofs happening before the 30th of November 1762, free from average. The fhip failed from Newcastle to Copenhagen, which is ufually about ten days voyage. She was foon after taken by a French privateer, but ranfomed; and fhe then proceeded on her voyage to Copenhagen (as was proved by the ranfomers) in a bad condition. She was never heard of afterwards, though all due diligence had been used; and several ships, which failed after her, were proved to have arrived fafe at Copenhagen. Lord Mansfield told the jury, that this evidence was a fufficient ground to prefume that she perifhed at fea, 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 ufage of merchants, fixing a limited time, within which the affured may demand payment for his lofs, in cafe no accounts arrive of the fhip, upon which insurance is made. Indeed, from the nature of the thing, what shall be a reasonable time, in fuch cases, must always depend upon a variety of obvious circumstances. I understand, however, a practice has prevailed among insurers, which feems reafonable enough, that a fhip fhall be deemed loft, if not heard of in fix months after her departure, (or after the time of the laft intelligence from her) for any part of Europe; and in twelve months, if for a greater diftance. The only objection to fuch a practice is, that the latter period does not seem sufficient in India voyages. However, that is a matter for the infurer's confideration; and even if he fhould pay the money under a mistake, fuppofing the fhip loft, when it really is not, Vide poft, c. 20, he might, as we fhall fee hereafter, if the infured were une aik. 23 willing willing to refund, recover it back, in an action for money CHA P. bad and received to his ufe. In Spain and France, this matter, however, is not left to uncertainty; but the time, within which fuch loffes may be demanded, is fixed' and afcertained by exprefs regulations. III.. [65] By the ordinances of the former, if any ship infured on going 2 Magens 33. to, or coming from the Indies, is not heard of in a year and a half after her departure from the port where the loaded, it is declared that she is, and fhall be deemed loft: by thofe of the latter it is faid, 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 2 Magens 177. for those at a greater distance, make his ceffion to the under- Ord. of Lewis writers, and demand payment, without being obliged to pro- 58. duce any certificate of the lofs. 14. 1. 31. art. С НА Р. IV. 2 Burr. 694. v. Withers. CHAPTER THE FOURTH. Of Loffes by Capture and Detention of Princes. APTURE, as applied to the fubject of marine in CAPT furances, may be faid to be a taking of the fhips or goods belonging to the fubjects of one country, by thofe of another, when in a state of public war. What fhall be 'confidered as a capture, fo as to render an insurer liable under a policy, infuring againft captures, has now become a queftion of very little difficulty. The law upon this fubject is perfectly fettled in England, It point in Gofs between the infurer and the infured; and it is this, that the fhip is to be confidered as loft by the capture, though the 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 infurer runs the risk of the infured, and undertakes to indemnify; he must therefore bear the lofs, actually fuitained, and can be liable to no more. So that if, after condemnation, the owner recovers the fhip in her complete condition, but has paid falvage, or been at any expence in getting her back, the insurer muft pay the lofs fo actually fuftained. No capture by the enemy can be fo total a lofs, as to leave no poffibility of recovery. If the owner himself should retake at any time, he will be entitled; and by late acts of parliament, if an English fhip retake the veffel captured, either before or after condemnation, the owner is entitled to reftitution upon ftated falvage. This chance does not, however, fufpend the demand for a total lofs upon the infurer: but juftice is done, by putting him in the place of the infured, in cafe of a recapture. 2 Burr. 696. 29 Geo. II. c. 34. f. 24. 33 Geo, III. c. 66. 1. 42. These These principles, which are agreeable to the ideas of fo- CHA P. reign writers, were fettled by Lord Mansfield, and the whole court of King's Bench, in Gofs against Withers, (which will IV. be cited at length when we come to treat of abandonment), Rocci Selecta refponfa, and which have never fince been difputed. It has likewife Rep. 34. been held, that where a capture has been made, whether it be legal or not, the insurers are liable for the charges of a 2 Burr. 683. compromise made bonâ fide, to prevent the fhip from being condemned as prize. It is true, the only cafe I have been able to find where this point came directly in question is a nifi prius note; but when we confider the high authority from which this doctrine is taken, and that the thing in itfelf is not at all repugnant to the general principles of the law of infurance, it certainly has a claim to our attention. Rucker. I It was an action on a policy of infurance on a Dutch fhip, Berens v. called the Tyd, and its cargo, at and from Saint Euftatius 1 Black. 313. to Amsterdam, warranted a Dutch ship, and the goods Dutch property, and not laden in any French port in the Weft Indies. The cargo was worth 12,000l. and was infured at a premium of fifteen guineas per cent. which was advanced to this high rate, on account of the number of captures made by the English, of neutral vessels, on fufpicion of illicit trade, and the detention of those vessels, by the proceedings in the courts of admiralty. The defendant underwrote 82 1. of the plaintiff's, for a premium of 127 18 s. 3 d. In May 1758, the fhip was at Saint Eustatius, taking in her cargo, which confifted of fugar and indigo, and other French commodities, which were put on board her, partly out of barks from fea, partly from the fhore of the island. On the 18th of June 1758, the failed on her voyage; on the 27th she was taken by an English privateer, and carried into Portsmouth. On the 1st of Auguft, the failors were examined upon the ftanding interrogatories, prescribed by the ftatute 29 Geo. II. . 34. and the captain entered his claim in the Admiralty court. In October 1758, the claimants were cited to specify what part of the goods was taken from the fhore of Saint Euftatius, and what from the barks. Citation was continued from |