XII. INSURABLE INTEREST OF CAPTORS. "PRIZE," said Sir W. Scott in The Elsebe (k), "is altogether a creature of the Crown. No man has, or can have, any interest but what he takes as the mere gift of the Crown; beyond the extent of that gift he has nothing." In the same case the Court decided that up to the period of final condemnation by the Court of Admiralty, the Crown could, by virtue of its prerogative, restore a prize to the enemy from whom it had been captured, without any reference to the captors; though these instances were of rare occurrence, and rightly so. "A capture at sea," said the same learned judge in The Rebekah (1), "made by a force upon the land as, if a ship of the enemy was compelled to strike by a firing from the castle of Dover . . . . that ship would be a droit of Admiralty, and the garrison must be content to take a reward from the bounty of the Admiralty, and not a prize interest under the king's proclamation." On the outbreak of war it is usual for a prize proclamation to be issued, ordering reprisals on the enemy's ships, goods, and subjects, and declaring that the proceeds of property so seized by the ships of war shall be for the benefit and encouragement of the officers, seamen, and marines on board the vessels effecting the captures, after final condemnation as lawful prize of war. "In all cases of prize," as Sir W. Scott expressed it, "the words of the royal proclamation are the title-deeds of flag officers, and no naval officer can by law claim an interest in prize unless it falls clearly within the provisions of the proclamation in force for the time (2) 1 Rob. 235. (k) 5 Rob. 181. being" (m). The Prize Proclamation issued in 1854 makes special provision for the case where a capture is due to the conjoint action of the land forces and sea forces, or to the fleet in conjunction with the vessels of an ally; but declares that in other cases the net proceeds of property captured and condemned shall be for the officers and men manning the capturing vessels, or vessels adjudged to be joint-captors therewith. The shares of prize-money attaching to the several ranks and grades of officers and men are set forth in detail, beginning with flag officer or commodore and ending with the ship's boys and supernumeraries; and the title to share in the prize is elaborately dealt with generally. The Prize Act, 1864 (n), deals with the various questions arising in connexion with prize captures, but the apportionment of prize proceeds is left to be the subject of proclamation on the outbreak of war. The first occasion on which the question arose as to captors' right to insure prizes proceeding to port for adjudication was that known as The Omoa Case (o). In this case a conjoint detachment of sea and land forces had captured the fort of Omoa, with two Spanish vessels lying under its protection. An insurance was effected on one of these vessels on behalf of the officers and crews of the naval detachment, at and from Omoa to London. The vessel having been lost on the voyage, a question arose whether the officers and crews of the capturing vessels had such an insurable interest as entitled them to recover. Two issues were raised, viz. :—(1) whether the sea officers had an insurable interest under the then Prize Act; and (2) whether possession would entitle them to insure, upon the bare contingency of a future grant from the Crown. Lord Mansfield decided as to the first, that under the wording of the Act the circumstance that this was not a capture by the naval forces solely did not lessen the right of the navy: that wherever a capture had been made by a King's ship or a privateer, the Crown had always given a grant of it after condemnation: that in this case the possession was in the assured: and that a certain expectation of receiving from the Crown the property captured gave them an interest in (m) Mar. Warfare, 399. (n) For which, vide Appendix. (0) The Omoa case, Le Cras v. Hughes, Park's Insce., 8th ed. 568. the arrival. It being thus decided that the captors had an insurable interest under the Prize Act, a decision upon the second question became unnecessary. But in the subsequent case of Lucena v. Crawford (p), Lord Mansfield's deduction based on the fact of possession and the contingency of future grant failed to receive general endorsement, Lord Eldon declaring that expectation, however well founded, was not interest, and that that which was wholly in the Crown, and which it was in the power of His Majesty to give or withhold, could not belong to the captors so as to create any right in them. This was the celebrated case where a fleet of Dutch merchantmen had been captured and provisionally carried to St. Helena, under an Order in Council directing that all Dutch vessels bound to and from the ports of Holland should be brought into this country, Holland being then in possession of the armies of the French Republic. Four of the vessels thus seized having been lost on their way to this country, a question arose as to the right to insure them claimed by the members of a Commission appointed for the disposal of Dutch property thus brought to England. This case, which was for more than eight years under litigation, and in the House of Lords gave rise to "one of the most elaborate and ingenious legal discussions ever raised upon a maritime point of law," is discussed in Arnould's Insurance, 5th ed., pp. 93-97. For the purposes of this work it is sufficient, after this reference, to say that the final result of the case must now be considered to be contained in the judgment of Lord Eldon, just mentioned, although his Lordship's judgment was not that delivered by the majority of the House of Lords. And in Routh v. Thompson (q), where in consequence of a royal proclamation on the eve of hostilities with Denmark an armed vessel carried into Lisbon a Danish vessel; and after declaration of hostilities the captors effected an insurance on the vessel; it was held that they had no insurable interest, as they could claim nothing as of right. "Can a man," inquired Lord Ellenborough, "who has no right, legal or equitable. . . . effect an insurance merely because he has a chance that some collateral benefit may come to him if the ship and cargo should arrive in safety? The de (p) 2 B. & P. N. R. 323; The Hoop may also be referred to, 1 Rob. 196. (7) 11 East, 434. ment. claration must aver an interest in the subject insured, and that interest must be proved. And how can it be said that these captors have any interest either in the ship or freight, when the ship is altogether the King's?" In this case, it is true, the seizure had been effected before declaration of hostilities; but the circumstance does not appear to affect his Lordship's arguAgain, in De Vaux v. Steele (r), it was decided by Tindal, C. J., that the chance of receiving a bounty from the French Government on the successful termination of a fishing voyage did not constitute an insurable interest. (This decision is not connected with any question of captors' interest, but is mentioned as being in opposition to the statement of the law as declared in The Omoa case, above.) So that if Lord Mansfield's judgment in the latter case is to be followed in the future, it will presumably be so only where the expectation is founded on a long and uniform course of practice of the Crown to make the grant, and no instance can be given to the contrary (s). In the above case of Routh v. Thompson, it was further pleaded that the fact of possession rendered captors liable, either to the Crown or to the foreign owner, for costs and damages in respect of the capture and custody of the ship, and that they had, therefore, an interest in her safety. Lord Ellenborough, however, held that this argument-which had been previously adopted by Lord Kenyon in Boehm v. Bell (t), and approved by Lord Eldon in Lucena v. Crawford-was inapplicable to the present case, because a formal declaration of hostilities had intervened before the loss, at once vesting the right of ownership in the Crown, putting an end to all claim on the part of the foreign owners, and freeing the captors, as agents for the Crown, from all liability for acts done within the scope of their authority, which it did not appear that they had in any degree exceeded (u). But if an insurance be effected for the captors "and such as it may concern," the Crown may subsequently ratify the insurIt would seem, indeed, from the case of Stirling v. ance. (r) 8 Scott, 637; 6 Bing. N. C. 358, 370, 371. (s) Arnould's Insce., 5th ed. 92. (t) 8 T. R. 154, 161. (u) Arnould's Insce., 5th ed. 98. Vaughan (x), that the captors, as servants and agents of the Crown, have an implied authority to insure on behalf of the Crown, and, consequently, the right to recover on an averment of interest in the Crown. For the Crown has in all cases an insurable interest in ships lawfully detained and captured under the laws of war (y). It is important to note that in H. M. Prize Proclamation, 1854, it was announced that the net produce of all Russian prizes taken by British war-ships "Shall be for the entire benefit and encouragement of "our flag officers, captains, commanders and other commis"sioned officers in our pay; and of all subordinate warrant, "petty, and non-commissioned officers, and of the seamen, "marines and soldiers on board our said ships and vessels "at the time of the capture, after the same shall have been "to us finally adjudged lawful prize" (≈). As regards Fire insurance, see The Catharine and Anna, briefly referred to on p. 335, supra. (x) 11 East, 619. (y) Arnould's Insce., 5th ed. 99. Vide also p. 319, supra. |