destination in the common form, or a license, is primâ facie evidence. Insurance on goods by a certain ship from Leghorn to Lisbon. At the trial in 1826, the evidence was, that the vessel with the goods insured on board, sailed from Leghorn in April, 1821, for Lisbon; that she never arrived at that place: and that, a few days after her departure from Leghorn, the witness heard that she had foundered at sea, but that the crew were saved; holdenP, that this was sufficient primâ facie evidence of a loss by perils of the sea, and that it was not necessary for the plaintiff to call any of the crew, or to account for their non-attendance. Upon a policy of insurance on goods, where the ship being disabled by the perils of the sea from pursuing her voyage, was obliged to put into port to repair; and, in order to defray the expenses of such repairs, the master having no other means of raising money, sold part of the goods, and applied the proceeds in payment of these expenses. It was holden, that the underwriter was not answerable for this loss. Under a count for a loss by perils of the sea", evidence that the ship was destroyed by a species of worms, which infest the rivers of Africa, was holden not to support the declaration. If a ship hove down on a beach within the tideway to repair, be thereby bilged and damaged, it is not a loss occasioned by the perils of the seas. A transport in the service of government, was insured for twelve months, during which she was ordered into a dry harbour, the bed of which was uneven, and on the tide having left her, she received damage by taking the ground; it was holdent, that this was a loss by a peril of the sea. So in an insurance on goods in a ship warranted free from capture and seizure. The ship was stranded on a shoal within a few miles of the port of destination, and disabled from proceeding; but while she lay in the sand, she was seized by the commander of the place at which she was stranded; and the goods were confiscated by him: it was holden" a loss of the goods by the perils of the sea. A policy was effected on living animals, warranted free from mortality and jettison. In the course of the voyage some of the animals, in consequence of the agitation of the ship in a storm, were killed; and others, from the same cause, o Marshall v. Parker, 3 Campb. 70. r Rohl v. Parr, London Sittings after H. T. 1796. Park, 105. s Thompson v. Whitmore, 3 Taunt. 227. t Fletcher v. Inglis, 2 B. & A. 315. u Hahn v. Corbett, 2 Bingh. 205. received such injury that they died before the termination of the voyage insured. It was holden, that this was a loss by a peril of the sea, for which the underwriters were liable. In a similar case, where it was found in the special verdict, that a certain usage, with respect to such policies prevailed amongst the underwriters subscribing policies at Lloyd's coffee-house in London, and merchants and others effecting policies there, and that the policy in question was effected at Lloyd's coffee-house, but it was not found that the plaintiff was in the habit of effecting policies at that place: it was holdeny that this usage was not sufficient to bind the plaintiff. An averment of loss by perils of the sea, is not supported by proof that the vessel was sunk in consequence of being fired upon by another vessel, under a mistake. It is the province of the jury to determine, whether the cause of the loss be a peril of the sea or nota. In cases of insurances upon goods, where, by the terms of the policy, the underwriter is to continue liable until the goods are safely landed, if one of the public lighters, entered at Waterman's Hall, be employed for the purpose of landing the goods, and the goods sustain a damage on board such lighter, without any negligence on the part of the lighterman, the underwriter will be responsible for the loss; but if the owner of the goods chooses to employ his own private lighter to land them; or if after the goods are put on board a public lighter, the owner takes them into his own custody and possession, and discharges the lightermand, the underwriter in such cases will not be liable. See Hoffman v. Marshall, 2 Bingh. N. C. 383. and ante, p. 957. 2. Loss by Capture. Capture is the taking the ship or goods by an enemy of the country to which the ship and goods belong, when in a state of public war. To constitute a loss by capture within the meaning of the policy, it is not necessary that the ship should be condemned, x Lawrence v. Aberdein, 2 B. & A. 107. y Gabay and another v. Lloyd, 3 B. & C. 793. Buller, J. Hurry v. Royal Exch. Ass. 2 Bos. and Pul. 430. c Sparrow v. Carruthers, Str. 1236. z Cullen v. Butler, 1 Stark. N. P. C. d Strong v. Natally, 1 Bos. & Pul. N. 138. Ld. Ellenborough, C. J. a Per Kenyon, C. J. in Buller v. Fisher, Abbot, 236. b Rucker v. London Assurance Comp. London Sittings, June, 1784, per R. 16. e Per Lord Mansfiel d, C. J. in G s v. or carried into any port or fleet of the enemy. In every case of capture, the insurer is answerable to the extent of the sum insured for the loss actually sustained. This may be either total, as where the thing insured is not recovered again; or partial, as where the ship is recaptured or restored before abandonment; in which case the insurer is bound to pay the salvage, and any other necessary expense, which may have been incurred by the party for the recovery of his property. In assumpsit upon a policy of insurance, interest or no interest, against enemies, pirates, takings at sea, &c. it appeared, that the ship was taken by a Swedish pirate, and remained in his possession nine days, and then was retaken by an English man of war, and, after the suit commenced, brought into Harwich: it was holden that the plaintiff was entitled to recover: for though the ship was retaken, yet the plaintiff had received a damage by the interruption of his voyage; and the question was not, whether the plaintiff had his ship, and did not lose his property, but what damage he had sustained. In a case where a privateer had been insured, interest or no interest, free from average, and without benefit of salvage, for a cruise of three months, and during that time she was captured, whereby she was prevented from finishing her cruise: it was holden, that the assured was entitled to recover for a total loss, although it did not appear, that the ship was ever carried infra præsidia hostium, and although the ship was retaken before the expiration of the three months. See further on this subject, Whitehead v. Bance, Park, 77. and Dean v. Dicker, Str. 1250. A ship warranted neutral was captured as an enemy's ship, and the owners, after an interlocutory decree against them, agreed to a compromisei; this being done bona fide, it was holden, that the insurer was liable for the sum paid by the insured under such compromise. Formerly, it was a common practice, when vessels were captured by the king's enemies, or by other persons committing acts of hostility, for persons to agree with the captors for ransom of the vessels, and for securing the stipulated ransom, not only to give hostages, but also to bind themselves, or the owners, for the payment thereof. The law of nations gave a sanction to this practice; but it having been found, by experience, liable to great abuse, and there being reason to apprehend, that upon the whole it operated more to the disadvantage than the bene f Marsh. 422. h Pond v. King, 1 Wils. 191.' g Depaiba v. Ludlow, Comyn's R. 360. i Berens v. Rucker, 1 Bl. R. 313. fit of his majesty's subjects, the legislature interposed, and prohibited it. See stat. 22 G. 3. c. 25. s. 1. 33 G. 3. c. 66. s. 37, 38. 43 G. 3. c. 160. s. 34, 35. Although by the terms of the policy, the underwriters undertake to indemnify the assured against all captures and detentions of princes, without any exception in respect of the acts of the government of their own nation, yet has the law engrafted an exception thereon of captures made by the authority of the government of the country to which the underwriters belong. Hence, it has been solemnly determined, that even after the cessation of hostilities between England and France, a Frenchman was not entitled to recover in the English courts upon a policy of insurance effected in England before the commencement of hostilities; for a policy, containing an insurance against British capture, eo nomine, would be illegal and void upon the face of it, as being directly and obviously repugnant to the interest of the state, having immediate tendency to render ineffectual, to the extent of the indemnity created thereby, all offensive operations by sea adopted on the part of his majesty and his subjects, for the purpose of weakening the strength and diminishing the resources of the enemy. And if an insurance by a British subject, made in terms against British capture, would be void, an insurance indirectly producing the same effect, by the application afterwards of the general terms of the insurance to the particular event (i. e.) of British capture, which takes place afterwards, must upon principle be equally illegal; and no peril, the subject of insurance, can be recovered under the generality of the terms "capture," detention of princes," or the like, which cannot, consistently with law, be specifically insured against in direct and express terms. Although in cases of capture the underwriter is responsible to the assured, yet, if before a demand the ship be recovered, he is liable for the amount only of the loss sustained at the time of the demand; or if the ship be restored after payment by the underwriter, he shall stand in the place of the assured. Under this head it will be proper to consider the effect and operation of an embargo on the contract of insurance. An embargo is an arrest laid on ships or merchandize by public authority, or a prohibition of state, commonly issued to prevent foreign ships from putting to sea in time of war, and sometimes also to exclude them from entering our ports. Where a neutral insures in this k Furtado v. Rodgers, 3 Bos. and Pul. 191. Kellner v. Le Mesurier, 4 East, 396. Gamba v. Le Mesurier, 4 1 kotch v. Edie, 6 T. R. 413. country a ship "at and from a port in a foreign country;" and while the ship remains in that port, an embargo is laid on by the foreign state, the assured will, if the embargo continue, be entitled to abandon, and to recover for a total loss; for such an embargo is within the meaning of the words "arrests, restraints, and detainments by kings, princes, and people." What would be the effect of an embargo laid on by the government of this country upon a ship insured here, has not been solemnly determined. It seems, however, that although one British subject might insure another British subject against the consequences of an embargo laid on by the British governmentm, yet an insurance for the benefit of a foreigner against such an embargo would be illegal". دو 3. Loss by Arrests, &c. Among other perils, which the assurers, in the language of the policy, are contented to bear, and do take upon them in the voyage, are "arrests and detainments of all kings, princes (19), and people, of what nation, condition, or quality soever." The word people means the ruling and supreme power of the country, whatever it may be. This appears clearly from another part of the policy; for where the underwriters insure against the wrongful acts of individuals, they describe them by the names of pirates, rogues, thieves. The words, therefore, "kings, princes, and people," must apply to nations in their collective capacity. Hence, where a party of rioters boarded a ship, and having taken the command, stranded her, and compelled the captain to sell the cargo, which consisted of wheat, at their own price, and much below its real value; it was holden, that the plaintiff, who had insured the cargo, could not recover on a count stating that the vessel was arrested, distrained, and detained by people, to the plaintiff unknown, by reason whereof the m See Marsh. 437. Green v. Young, n Opinion of the judges in Touteng v. (19) By the word "princes," according to the opinion of Lord Mansfield, in Goss v. Withers, 2 Burr. 696, must be understood, not enemies merely, but those in amity also. Hence it is said, that by the general law, the assured may abandon in the case of an arrest or detainment by a prince, not an enemy. |