1815. June 28. A vessel with liberty to chase and cap ture prizes, did not ap pear, they break loose, A HUCKS and Others v. THORNTON. CTION on a policy of insurance on the ship Vigilant, dated August 19th, 1807; to has some Spa- commence on the 1st of August, 1806; lost or nish prisoners on board. By not lost; with or without letters of marque; with means, which liberty to chase, capture, and man prizes; and to see and take them into port, &c. The loss was rise upon, and alleged to be by the barratry of the mariners, &c. imprison the with the The ship left England in 1805; she was licensed one sailor, who to sail without convoy; her burthen was 199 tons, is heard upon with 10 guns, and 24 men. In July, 1806, she had been reported safe. During her voyage she had made several prizes, and a short time before the exception the loss, which was the subject of the present of this sailor, action, she had taken a Spanish vessel. exception of the deck in conversation with them. The captain and crew, with are put on Spaniards run Her shore, and the original adventure was the whale fishery, and she had taken one whale of 36 gallons; but she had latterly desisted from this part of her adventure, and was principally employed in the scal fishery. In the autumn of 1806, she had on board some Spanish prisoners. By some means, which did not appear in evidence, they were let loose; they rose upon the crew, murdered the mate, and confined the Captain and sailors, with the exception vessel, engag- of one man, whose name was Brookson, in the this is evidence to be left to the Jury that such barratry was commit ted. Where a ed in the Southern whale and seal fishery, steerage. The sailor, who was left at liberty, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the 1st of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed sea-worthy. 1815. HUCKS and Others υ. appeared to be acting in confederacy with the mutineers. The captain and crew, with the exception of this man, were put on shore on the Spanish main, and marched up to Quito; and the mutineers ran away with the ship At the time of THORNTON. the capture, the crew was reduced to nine men and a boy. It was in evidence that the crew had suffered by death and desertion since leaving England, and that at the time to which the insurance referred, they did not exceed nine men and a boy, though five prisoners were on board. It appeared that the prisoners had been properly confined, though occasionally suffered to come out for air and exercise. It was in evidence that, with a crew so reduced, it was impossible to pursue the whale fishery, and keep a proper guard over the prisoners; but that the crew was sufficient for the seal fishery and other purposes of the voyage, and likewise to navigate the vessel to England. The Solicitor General, Best, serjeant, and Spankie, for the defendant, made two objections. 1. No barratry. The Spanish prisoners rose upon the crew and ran away with the ship. The plaintiffs may allege any species of loss; they might have alleged simply that she was taken by the Spanish prisoners. They have chosen to ascribe the loss to barratry. If the crew assisted the prisoners in seizing the ship, or were passive and permitted them to take her, that would be barratry: but the present case afforded no evidence of that sort. Did it follow that Brookson was a 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 seal 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. Ꭰ 1815. HUCKS and Others 2. 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. |