1815.

HUCKS

mutineer, because not made a prisoner with the rest of the crew. The insurgents might want an

and Others English sailor to navigate the vessel.

v.

Nothing is more common than for prisoners or mutineers,

THORNTON who rise upon a crew, to spare the

captain or some skilful sailor to navigate the ship. He might be obliged to submit to a compulsive force; all the evidence of barratry against him was, that he was heard upon deck talking to the Spanish prisoners, and that he was not confined with the rest of the crew. Supposing Brookson on his trial, is this evidence to convict him?

2. The plaintiffs are bound to shew that the Vigilant was seaworthy on the 1st of August 1806. This was not an insurance from place, but the plaintiffs undertake that, upon the 1st of August 1806, she had a proper and sufficient crew on board. No matter what her force was when she sailed from England; she still continued to claim the same privileges, to chase, capture, and man prizes, and to pursue the whale and scal fishery. She was taken, moreover, upon whaling ground. As respects the insurers, the 1st of August was the inception of her voyage. For a ship of this burthen, of ten guns, so employed, with prisoners on board, could nine men and one boy be a sufficient crew?

Lens, serjeant, for the plaintiffs, admitted that she must be seaworthy on the 1st of August 1806; but allowing that, for the beneficial purposes of her voyage, the whale fishery, she had not a sufficient crew; nevertheless, if the crew were suffi

1815.

HUCKS

v.

THORNTON.

cient for the other purposes, if she could be safely navigated, and such prisoners as she had on board properly guarded, she might be pronounced sea- and Others worthy. The underwriters have all they want, the fair security of the ship. She went out at first manned for both purposes; she might abandon that part of her adventure which required greater force than she possessed, and pursue that branch only for which she was competent.

GIBBS, C. J.-Undoubtedly this policy had a retrospect to the 1st of August 1806. Whether there be barratry or not proved is a question for the jury. There is pregnant evidence that Brookson was concerned with the prisoners; but the most important question is, was this vessel seaworthy in August 1806? The state of things when this insurance was effected must have been known to the underwriters; they knew that it was an adventure, the circumstances of which must fluctuate from time to time, and that the duty of the plaintiffs would necessarily change with them. When they commenced the adventure the vessel might chase, capture, and man prizes; she might at that time prosecute all or any part of her adventure; she had then a sufficient and disposable force for every purpose: but when, by casualties or other circumstances, the crew was reduced, it would have been a breach of duty in the captain to have prosecuted that part of her adventure which required greater force than the vessel possessed: but other objects might still be within her compass. If she had a competent crew to pursue any part of her adventure, it being at her election to pursue what part VOL. I.

D

1815.

HUCKS

and Others

v.

she chose, she might be deemed seaworthy within this policy. The force, in the contemplation of all parties, must fluctuate from time to time. If the crew could perform some of the objects of their THORNTON. adventure with safety, and navigate the vessel home, she cannot be called unseaworthy. It does not appear that she was engaged in any adventure for which her force was unequal; or that, at the time of her capture, she was employed in the whale fishery.

His Lordship left two questions to the jury.1. Barratry or not, according to the evidence; 2. Seaworthiness.-The jury found for the plaintiff's on both points.

Lens and Vaughan, serjeants, and Marryat, for plaintiffs.

Solicitor General, Best, serjeant, and Spankie, for defendants.

[Attornies, Rivington, and Kearsey and S.]

The foreign writers on insurance hold that barratry comprehends every fault, either of the master and mariners, by which a loss is occasioned. They make no distinction between fraud and negligence, but refer to barratry any loss arising from the unskilfulness or mere imprudence of those who have the charge of the

vessel. Pothier, h. t. n. 65. With us, no act is deemed barratry, merely because it is against the interest of the owners; it must be done with a criminal intent. 7 T. R. 505. Earl v. Rowcroft, 8 East, 126. A loss by barratry is well alleged, though the proof is, that it happened by the act of the enemy and barratry jointly.

ASSUMPSIT for demurrage and freight; some ok some silk

took
on board to

carry from

fendant's ac

the margin of

of the counts were special, in which the plaintiff averred that he was ready and willing, on a cer- Rotterdam to tain day stated in the declaration, to deliver the London on degoods in question. There were likewise common count. On counts for freight and demurrage. The defend- the bill ants had pleaded the general issue, and a tender of 11. 4s. 3d. which was the amount of the freight and primage.

lading was

written: "The clear the goods

consignee to

in 14 running days, after her arrival in port,

or to pay 41. per diem for demurrage." The vessel was ready to deliver on the 3d of October. Defendant applied for, and was ready to receive his goods within the running days; but being undermost in the vessel, delivery could not be made till the 22d. Held that the plaintiff was entitled to recover demurrage, though he did not deliver the goods within the time allowed, being prevented by other goods, belonging to other consignees, which overlaid them.

1815.

HARMAN

v.

The defendants were the consignees of two bales of silk, which had been put on board the plaintiff's vessel to be conveyed from Rotterdam to London. GANDOLPH The bill of lading was in the usual terms; but a and Others. memorandum was written in the margin, “that the consignee was to clear the goods out of the vessel in fourteen running days after her arrival in port, or to pay four pounds per diem for demurrage." The vessel arrived in the port of London, on the 1st of October 1814, and was reported at the Custom House on the 3d. The defendants' broker applied for the goods successively on the 8th, 19th, and 22d. The ship began discharging immediately upon her arrival. On the 14th, five bales of silk were ready to deliver; and two more, the only remaining bales on board, were ready to deliver on the 22d. The running days expired on the 17th. The defendant's goods had been regularly entered at the Custom House, and the warrant for delivery sent down on the 11th of October ; but the order for delivery was not brought till the 22d, between three and four o'clock, when the mate was on shore, the ship having finished working for that day. The 23d of October was Sunday, and on the 24th the silks were finally delivered to the defendants.

It was in evidence, that if all the consignees had been ready to receive their goods they might have been delivered within seven days from the arrival of the vessel. The present action was brought to recover 281. being the amount of seven days' demurrage, from the 17th to the 24th of October.