from thence to the West Indies; and which, as it was said, turned on the entirety of the voyage insured, the freight being covenanted to be paid for the said voyage, according to a stipulated rate per pipe for 500 pipes of wine; whereas, this was an open policy, and the freight was to be ' estimated according to the quantity of goods on board, of which there never were any, and therefore no inception of the freight, and consequently not of the insurance upon it: and this, it was argued, was the same as if the ship had sailed from Dominica without any goods on board; but the objection was overruled, Lord Ellenborough C. J. observing, that it was clear that the underwriter was liable, upon the authority of Thompson v. Taylor, the voyage having commenced in which the freight was to be earned according to the terms of the charter-party, which made it one entire contract, and which voyage was insured by the policy; that in Thompson v. Taylor, the loss happened before the ship arrived at Teneriffe, where she was going to fetch her freight, and yet the underwriter was holden to be liable.

IV. Of Losses,

1. By Perils of the Sea.
2. By Capture.

3. By Arrests, &c.

4. By Barratry.
5. By Fire.

1. By Perils of the Sea.-LoSSES by perils of the sea are understood to mean only such as proceed from mere sea damage; that is, such as arise from stress of weather, winds, and waves, from lightning and tempests, from striking against rocks, from sands, &c.

If there has not been any intelligence received of a ship within a reasonable time after she has sailed, it will be presumed, that she perished at sea, and the assured may maintain an action against the underwriter, stating the loss to have happened by the vessel sinking at sea. What shall be deemed a reasonable time, must depend on the distance and length of the voyage, &c.

Evidence of the vessel having sailed on her intended voyage on such a day, and not having been heard of since,

a Marsh. 416.

b Park, 63.

c Green v. Brown, Str. 1199. See also

Newby v. Read, Sittings after M. T. 1763, coram Ld. Mansfield C. J. Park, 63.

is the best evidence, of which the nature of such a case admits, and, consequently, will be sufficient to support the action. It is not necessary to call witnesses from the vessel's port of destination; it is sufficient to prove that she was not heard of in this country after she sailed. But it must be shewn, that when the ship left the port of outfit, she was bound on the voyage insured. For this purpose the convoy bond mentioning the port of destination in the common form, or a licence, is primâ facie evidence.

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.

It is the province of the jury to determine, whether the cause of the loss be a peril of the sea or not'.

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 lighterman", the underwriter in such cases will not be liable.

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, 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 ap peared, that the ship was taken by a Swedish pirate, and remained in his possession for 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 compromise; 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

n Per Ld. Mansfield C. J. in Goss v.
Withers, 2 Burr. 694.
Marsh. 422.

p Depaiba v. Ludlow, Comyns R. 360. q Pond v. King, 1 Wils. 191.

r Berens v. Rucker, 1 Bl. R. 313.

ransom, not only to give hostages, but also to bind themselves, or the owners, for the payment thereof (18). 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 benefit of his Majesty's subjects, it was enacted by stat. 22 G. 3. c. 25. s. 1. "That it should not be lawful for any of his Majesty's subjects to ransom, or enter into any agreement for ransoming, any vessel belonging to any of his Majesty's subjects, or any goods on board the same, which should be captured by the subjects of any state at war with his Majesty, or by any persons committing hostilities against his Majesty's subjects." By s. 2. By s. 2. "Agreements entered into, and bills, notes, and other securities given by any persons for ransom of such ship or vessel, or of any goods on board the same, are declared void." And by s. 3. a penalty of 5007. is given to the informer for every offence against this act. This statute having expired with the termination of hostilities in 1783, the same provisions have been repeated verbatim in subsequent prize acts. See st. 33 G. 3. c. 66. s. 37, 38. during last war, and st. 43 G. 3. c. 160. s. 34, 35. now in force.

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

(18) When this agreement was reduced into writing, the instrument containing the terms of it was denominated a ransom bill. See the form, Doug. 641. This instrument usually provided for the safety of the captured vessel during the remainder of her voyage, and actions of assumpsit were brought upon these bills. See the form of declaration, 3 Burr. 1734. but in Anthon v. Fisher, Doug. 648. it was decided, that an alien enemy cannot, by the municipal law of this country, sue for the recovery of a right claimed to be acquired by him in actual war. Since the stat. 22 G. 3. c. 25. and 43 G. 3. c. 160. s. 34, 35. the law relating to ransom bills is become a mere matter of curiosity. The reader who is desirous of pursuing the subject, is referred to the following cases: Richard v. Bettenham, B. R. M. 6 G. 3. 3 Burr. 1734. 1 Bl. R. 563. Cornu v Blackburne, B. R. E. 21 G 3. Doug. 640. Anthon v. Fisher, B. R. M. 23 G. 3. Exch. Chamber, M. 25 G. 3. Doug. 648. n. (1). Yates v. Hall, B. R. M. 26 G. 3. 1 T. R. 73.

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 ef- fected 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 an 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.

It is to be observed, that 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.

By stat. 43 G. 3. c. 160. s. 39. (the last prize act) it is enacted, "That if any ship, vessel, or boat, taken as prize, or any goods therein, shall appear and be proved in a competent court of admiralty to have belonged to any of his Majesty's subjects, which were before taken by any of his Majesty's enemies, and at any time afterwards retaken by any of his Majesty's ships of war, privateer, or other vessel or boat under his Majesty's protection, such ship, &c. shall be adjudged to be restored by decree of the said court of admiralty to the former owners, on their paying for, and in lieu of salvage, 1. If retaken by any of his Majesty's ships, or hired armed ships, one eighth part of the true value of the ship, &c. 2. If retaken by any privateer, or other ship, &c. one sixth part of the true value, &c.; and, 3. If retaken by the joint

s Furtado v. Rodgers, 3 Bos. & Pul.
191. Gamba v. Le Mesurier, 4 East,

307. Kellner v. Le Mesurier, 4 East, 396.