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1816.

THIS

D'AGUILAR V. TOBIN.

HIS was an action on a policy of insurance upon the ship, the Samuel Cumming, at and from Jamaica, and Trinidad in the island of Cuba, to any port or ports of her discharge in the United Kingdoms; warranted to sail from Cuba on or before the 1st of August, 1814. Loss by capture.

A vessel may what from the straight line of seek for con

deviate some

her track to

voy; and the

captain, unless expressly prohibited by the terms of the policy, may always do, when insured, what

ever it would be expedient

for the common security to to, if unin

sured.

Ships sail

ing from fonot within the

reign ports are

Convoy Act, unless there

The vessel took in ballast from Jamaica: sailed July 6th for Trinidad di Cuba: arrived the 10th. She sailed again the 1st of August at six o'clock, p. m. and got out of harbour that night. She took her course for Cape Antonio at the west end of the island, which it was necessary to make in order to get into the gulph stream. She called off the Havannah, which is on the north side of the island, but neither dropped anchor nor entered the har- are persons at bour; the captain staid there less than an hour, grant convoy and during that time went in his boat within the or licenses. Moro castle. She then proceeded through the shew that congulph in her course to England, and was captured voys have been by an American privateer on the 17th. The vessel pointed from had no convoy or license. There had been a con- but proof must voy on the 30th of June from Jamaica to England, be given that but she was not ready then. There was likewise a convoy at the latter end of July to England.

Lens, serjeant, objected that the ship was not authorised to go to Havannah; though it might be contended that she went there to seek convoy.

thorized to

And it is not

actuaily ap

those ports,

there are per

sons stationed

there, legally authorized by the Admiralty to appoint them.

1816.

D'AGUILAR

v.

TOBIN.

The clause in the policy as to the return of premium if she sail with convoy, does not authorise a deviation in quest of it.

GIBBS, C. J.-Whatever is necessary for the safety of the ship, provided it be not excluded by the terms of the policy, may be done by the captain; and what is so done, is done as agent to the underwriters. A vessel, when insured, may always do whatever it would be expedient to do if uninsured. She may deviate somewhat from the straight line of her track to seek convoy, when it is for the common good and preservation. It may be as justifiable to seek convoy as to avoid an enemy. Therefore, not only does the reduction of the premium, in case she sails with convoy, authorize her to seek it, but she is at liberty to do so for her own security.

The defendant's Counsel then relied on the 1st and 8th section of the Convoy Act, and contended that the vessel should have waited for convoy. In 1814, Admiral Brown was on the Jamaica station, and had actually appointed convoys; one on the 30th of June; another on the 30th of July. They did not produce any order from the Admiralty, which authorized Admiral Brown to grant convoy or licenses; but they contended, that it was to be inferred that he had this power from being nominated to the station, and having actually appointed convoys.

GIBBS, C. J.-Ships sailing from foreign ports are excluded from the restrictions of the Convoy

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Act, unless there are persons at those ports authorized by the Admiralty to grant convoy or licenses. I cannot infer from the act of the Admiral in appointing a convoy, an authority from the Admiralty to grant one. This act is highly penal, and Jamaica might have been excluded. There is no proof that there was any convoy for Cuba at the time. The legislature saw it would be inequitable to oblige vessels to sail with licenses or convoy, when no one in foreign ports was authorized to grant them. I think this vessel was not within the prohibition of the Convoy Act, because it does not appear that, at the time of her sailing, there was any one at Jamaica legally authorized to grant

convoy.

1816.

D'AGUILAR

v.

TOBIN.

Verdict for plaintiff.

The Solicitor General, Best, serjeant, and Richardson, for plaintiff.

Lens, and Vaughan, serjeants, and Parke, for defendant.

[Attornies, Dennetts, G. and B.——————Cooper and Lowe.]

The convoy acts were passed by the Legislature, from the necessity, not only of protecting trade, but of securing the objects of war, which might be endangered by the imprudent venture of merchants. They

were introduced in great part
during the last war and the
commencement of the present.
A rule has thus been esta→
blished, that a private mer-
chant vessel, unless with a
previous license, must not sail,

1816.

V.

TOBIN.

during hostilities, on a foreign voyage without convoy. Thus D'AGUILAR every vessel is required, 1. Not to depart from port unless under such convoy as may be appointed. 2. To continue with the convoy during the whole voyage, or such part of it, as the convoy shall be directed to accompany the ship. 3. All insurances, whether on ship, cargo, or freight, are avoided, on the event of a voluntary breach of these laws. 4. Officers of the Customs are required to withhold any ship, which ought to sail with convoy, until the master shall have given a bond, with one surety, to comply with the act.

But the regulations of the act do not extend, 1. To any ship that is not required to be registered. 2. Nor to any ship having license to depart without convoy. 3. Nor to any ship proceeding with due diligence to join convoy from the port of her clearance, in case of the convoy being appointed to sail from such other place; the master, however, giving the bond before-mentioned. 4. Nor to any ship bound from any place in the United Kingdoms, to any place within the - same. 5. Nor to any ship belonging to the East India or Hudson's Bay Companies. 6. Nor to any ship departing

without convoy from any fo reign port or place, in case there should not be any convoy appointed for such ship; nor any person at such foreign port authorized to appoint a convoy. Nor, lastly, to any ship employed in the Newfoundland fishery. Vide 43 G. 3. c. 57.

The sailing with convoy required by this act is a sailing with convoy for the voyage: and it is not sufficient to sail with a convoy appointed for another voyage, though it may be bound upon the same course for great part of the way; and a ship cannot legally sail from port to port without convoy, unless she is bound from port to port; and if a convoy has sailed, a ship cannot legally endeavour to overtake it. Cohen v. Hinckley, 1 Taunt. 249. But the statute 43 G. 3. c. 57. does not avoid policies on ships sailing without convoy, unless the party interested in the insurance was privy to or instrumental in the sailing without convoy. ibid. Henderson v. Hinde, 1 Taunt. 250. n. See likewise Webb v. Thomson, 1 Bos. and Pul. 5. Anderson v. Pitcher, 2 Bos. and Pul. 164. From the two last cases it ap

pears, that the master of the trading vessels should not omit to obtain the sailing instruc

tions and orders delivered out by the commander of the convoy. In Anderson v. Pitcher, Lord Eldon observes, "The value of a convoy appointed by Government arises from its taking the ships nnder controul, as well as under protection. But that controul does not commence until sailing instructions have been obtained; nor can it be enforced otherwise than by their means. Without (sailing instructions) the ship does not stand in that relation, or under those circumstances, in which she can take the full benefit of the Go

vernment convoy. be dispersed by a

If the fleet If the fleet storm, how

is she to learn the place of her rendezvous? If it be attacked by the enemy, how is she to

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v.

TOBIN.

tected have with the protect- D'AGUILAR ing force?" But if the master do all in his power to obtain sailing instructions, but is prevented from obtaining them by badness of weather, or if they are refused by the commander of the convoy, he is excused. In such cases he would be excused, although there were a warranty to sail with convoy. Vide Abbott on Shipping, 243. and the cases cited, on this last point, in the notes. The convoy act is a very penal act, and therefore to be construed strictly. Vide Carstairs v. Allnut, 3 Camp. 497. Wainhouse v. Cowie, 4 Taunt. 178. Wake v. Atty, ibid. 493. Ingham v. Agnew, 15 East, 517.

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