1895. LAWRENCE against leaked very considerably, and after making more and more water from time to time, she finally foundered at sea ; and the crew were saved by the prize La Braave, which kept her company all the voyage till she sunk. On this point the SYLEBOTHAM captain deposed at the trial, that he received instructions [ 46 ] from his owners before the voyage, to take any ship he might capture under his protection; in consequence of which he continued with his prize, and not with a view of receiving from her any protection against the risk of the leak of his own ship. That several times during the voyage he shortened sail and lay to, in order to give the prize time to come up, and in order to keep company with her; and particularly on one occasion when the prize had carried away her fore-topmast. It was objected by the defendant's counsel, that the ship had deviated from the voyage insured, in two respects; 1st, In weighing anchor off the mouth of the Congo River, for the sole purpose of pursuing and taking the prize; 2dly, la shortening sail during the voyage to the West Indies, for the purpose of convoying the prize; neither of which, it was contended, was warranted by the liberty given in the policy "to carry letters of marque," and "to chace, capture, and man prizes." But the learned Judge's opinion inclining in favour of the plaintiff upon the construction of the policy in both respects, he directed the jury accordingly; and they found a verdict for the plaintiffs. The letters of marque recite an order by the King in Council,That all ships that shall be commissioned by letters of marque and general reprisals, &c. shall and may lawfully seize and take the ships, vessels, and goods belonging to the French Republic, &c. and bring the same to judg ment in the High Court of Admiralty within the King's dominions, for proceedings and adjudication and condemnation to be thereupon had," &c.; and then reciting that the captain of the Tamer had " given sufficient bail, with sureties, to the King in the High Court of Admiralty, according to instructions made the 17th of May, 1803, a copy of which was given to❞ the captain, it proceeds to authorize the captain to set forth the ship Tamer in a warlike manner, to seize and take the ships, &c. of the French republic, &c. "and to bring the same to such port as shall be most convenient, in order to have them legally adjudged in the High VOL. VI. D Court [ 47 ] 1805. Court of Admiralty of England, or before the judges of such LAWRENCE other Admiralty Court as shall be lawfully authorized within against the King's dominions: which ships, &c. being finally conSYDELOTEA, demned, it shall be lawful for the captain to dispose of them," &c. The instructions therein referred to contain clauses of the ¿ame import for seizing and taking the enemy's ships, and for bringing them into such port of England or some other port of the King's dominions as shall be inost convenient for the captors, in order to have the same legally adjudged. And article 3 directs, "That after such ships, &c. shall be taken and brought into any port, the taker, or one of the chief officers, or some other person present at the capture, shall be obliged to bring or send, as soon as possibly may be, three or four of the principal of the company (whereof the master and mate, or supercargo, to be always two) of every ship so brought into port before the Judge of the Admiralty, &c. to be examined upon interrogatories concerning the interest and property of such ship," &c. Art. 5 directs," That if any ship, &c. of the King or his subjects shall be found in distress, or taken by the enemy, &c. the commanders, &c. of such merchant ships as shall have letters of marque and reprisals, shall use their best endeavours to succour [48] and free the same," &c.; and by art. 11 and 14, "If any com mander of a ship, having a letter of marque and reprisals, shall act contrary to these instructions, he shall forfeit his commission, and, together with his bail, be proceeded against according to law, and be condemned in costs and damages, and be severely punished," &c.; and by art. 15, " Security and bail are to be taken in 1500l." for a vessel of this description. In Michaelmas Term last an application was made, and rule nisi granted, for setting aside the verdict, and granting a new trial, on the ground of the two deviations insisted upon at the trial. Against which Park, Topping, and Wood, now shewed cause. This case is distinguishable from Parr v. Anderson, now in judgiment (a) for here there is not only permission given to carry letters of marque, but an express liberty to "chace, capture, (a) Judgment was delivered in this case on a subsequent day of the term, vide post, when a new trial was awarded. and and man prizes." This necessarily includes a liberty to deviate for those purposes when in sight at least of an enemy, or a vessel supposed to be such. 1. A liberty to chace must include every act necessary for chacing, such as the weighing anchor was, in this case, where both the captor and her prize were previously lying at anchor near to each other. The anchor was not weighed, nor the ship carried out to sea upon a cruize to look for prizes, but the whole was done in the actual chace of a prize before in sight, and endeavouring to escape. Then, edly, The captor was warranted by the directions of his letters of marque and instructions, to accompany his prize to a port where she might be condemned; for that is necessary, in order to perfect the capture which he was at liberty to make. Such a liberty includes every act necessary or proper to give it effect, which either the general marine law or the laws of the captor's country enable him to do. When letters of marque are taken out, it is no longer optional to capture enemy's property or not which is within the belligerents' power to do; the master binds himself under a penalty to capture or destroy the enemy's ships whenever he can; and in case of cupture, he is directed to take his prize into port, in order to have it legally adjudged. Then when liberty is given to carry letters of marque, the underwriter virtually consents to incorporate in the policy all the directions contained in them, and in the accompanying official instructions. The captor cannot insure the possession of his prize so well as by keeping her company on the voyage; and he thereby also adds to the security of his own ship. The act done is for the benefit of the underwriter as well as of all other parties concerned in the safety of the ships and crews. The shortening sail was, therefore, no more than a necessary act for insuring the safety of the prize, and ultimately of the captors themselves. If a ship were to shorten sail, in order to relieve another in distress, that could not be deemed a deviation; and this was done in order to lessen the risk of distress, and for the purpose of conducting another ship into a place of safety. Cockell, Serjt. and Littledale, contra. The evidence in the case does not support the argument built on a supposed case of distress, which may, perhaps, be an excuse for deviation; for the captain disavowed having shortened sail from 1805. LAWRENCE against SYDEBUTHAM. [ 49 ] 1805. from any apprehension of danger to his own ship if he left the prize, but that he did it solely for the purpose of proLAWRENCE *against® *tecting his prize according to the instructions which he SYDEBOTRAM. had received from his owners. Neither was the prize * [ 50 ] supposed to be in any danger from the seas. By taking upon him, therefore, to convoy the prize, and, in so doing, to delay his own voyage, he plainly increased the risk of the underwriters beyond the terms of the liberty given in the policy, which are to chace, capture, and man. Neither of these include a liberty to convoy. So far as the underwriter's risk is increased by any deviation which happens in chacing and making the capture, that he agrees to; and so far as any delay is incurred in the voyage insured by those acts, or by the act of manning the prize afterwards, he consents to it: but it is a necessary condition implied in every policy, that the ship shall proceed on her vovage with all reasonable expedition; and, therefore, after the delay incurred within the terms of the liberty given by manning the prize, the assured were not entitled to create further delay by convoying the prize. The very liberty given to man the prize, while on the one hand it lessens the force of the captor, supposes that he is not to be encumbered with the further care of it, but that a sufficient number of men will be put on board to navigate and take care of both vessels : and the owner who knows the nature of the adventure, and that he may be required to draft off some of the crew, is bound to provide for such a contingency, at the risk of his policy if he leave his own ship without a sufficient crew. Neither the commission nor the instructions imply, that the captor is to accompany his prize into a port of condemnation, but only that the prize shall be brought; that is, brought by those put on board to take the management of .it, into port, in order to be adjudged. Whatever liberties, however, may be given to deviate or delay for particular purposes, they must be strictly confined to those purposes, and subject to those the principal object of the insurance is still the safe prosecution of the voyage insured with all proper and ordinary precautions, and all reasonable dispatch: and these collateral licences have always been construed strictly. As where there was a liberty to cruixe six weeks, it was holden to mean six successive weeks, and not to cover a cruizing [ 51 ] 1805. LAWRENCE against a cruizing for that time at intervals (a). If the captor were at liberty to convoy every prize into port, the voyage might be indefinitely prolonged by his making successive captures before he reached his ultimate destination. It might be even SYDEBOTHAN." considered to be most convenient to return with every prize to the port from whence he sailed. Lord ELLEN BOROUGH, C. J. The question is reduced to this: Whether acting as convoy to a prize, and slackening sail in the course of the voyage insured, in order to make the rate of sailing of the capturing ship conform to that of the prize, be within the meaning of the terms introduced into the policy, giving the assured "leave to chace, capture, and man prizes?" These terms clearly gave them liberty to do every thing of a hostile nature within the scope of them to overcome the resistance, and to take possession of the prize, by sending part of the erew of the captors on board the prize. But liberties of this sort, without giving them an expansion beyond what the parties can be supposed to have contemplated, cannot be extended beyond the plain meaning of the words, as applied to the subject matter, by adapting them to other circumstances of a voyage known by appropriate terms, and which are not included in the policy. I shall give no opinion at present upon the effect of the general leave to carry a letter of marque; it is enough to say, that in this case the parties themselves to the contract have defined what their own meaning was,-namely, to "chace, capture, and man prizes: and upon the principle that, expressio unius est exclusio alterius, that will not include a leave to convoy. I would however observe, that the words in the letter of marque which have been most relied on, directing the captor to bring the prize into port to be condemned, does not mean an actual bringing of it in by the master himself, but causing it to be brought into port would fully satisfy those words; that is, by putting a competent number of men on board the prize for that purpose. I must not be understood by this to say, that under such a liberty given to man prizes the captor may divest his own ship of the number of men necessary to conduct her safely to her port of destination; but that, under it, he may, without laying him [ 52 ] |