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1816.

D'AGUILAR V. TOBIN.

terms of the

THI

HIS was an action on a policy of insurance A vessel may

upon the ship, the Samuel Cumming, at and deviate some from Jamaica, and Trinidad in the island of Cuba, straight line of to any port or ports of her discharge in the United seek for con

voy; and the Kingdoms; warranted to sail from Cuba on or be- captain, unless

expressly profore the 1st of August, 1814. Loss by capture. hibited by the

policy, may alThe vessel took in ballast from Jamaica : sailed ways do, when

insured, whatJuly 6th for Trinidad di Cuba : 'arrived the 10th. ever it would She sailed again the 1st of August at six o'clock, for the comp. m. and got out of harbour that night. She took to to, if uninher course for Cape Antonio at the west end of the sured.

Ships sailisland, which it was necessary to make in order to ing from foget into the gulph stream. She called off the Ha- not within the

Convoy Act, vannah, which is on the north side of the island, unless there but neither dropped anchor nor entered the har- those ports au

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 sutficient to gulph 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, there are per but she was not ready then. There was likewise sono stationed

there, legally a convoy at the latter end of July to England. authorized by

the Admiralty

to appoint 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.

them.

1816.

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.

D'AGUILAR

TOBIN.

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

1816.

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 ap

D'AGUILAR pointing a convoy, an authority from the Admi TOBIN. ralty 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 ány one at Jamaica legally authorized to grant convoy

Verdict for plaintiff.

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

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

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

The convoy acts were passed were introduced in great part by the Legislature, from the during the last war and the necessity, not only of protect commencement of the present. ing trade, but of securing the A rule bas thus been estaobjects of war, which might be blished, that a private mer. endangered by the imprudent chant vessel, unless with a venture of merchants. They previous license, unust not sail,

1816. during hostilities, on a foreign without convoy from any fo.

voyage without convoy. Thus reign port or place, in case D'AGUILAR every vessel is required, 1. Not

there should not be any convoy to depart from port unless under appointed for such ship; nor TOBIN.

such convoy as may be appoint any person at such foreign
ed. 2. To continue with the con port authorized to appoint a
voy during the whole voyage, convoy. Nor, lastly, to any
or such part of it, as the con ship employed in the New.
voy shall be directed to accom foundland fishery. Vide 43 G.
pany the ship. 3. All insu 3. c. 57.
rances, whether on ship, cargo, The sailing with convoy re.'
or freight, are avoided, on the quired by this act is a sailing
event of a voluntary breach of with convoy for the voyage :
these laws. 4. Officers of the and it is not sufficient to sail
Customs are required to with with a convoy appointed for
hold any ship, which ought to another royage, though it may
sail with convoy, until the be bound upon the same course
master shall have given a bond, for great part of the way; and
with one surety, to comply a ship cannot legally sail from
with the act.

port to port without convoy, But the regulations of the unless she is bound from port act do not extend, 1. To any to port; and if a convoy has ship that is not required to be sailed, a ship cannot legally registered. 2. Nor to any ship endeavour to overtake it. Co. having license to depart with hen v. Hinckley, 1 Taunt. 249. out convoy. 3. Nor to any But the statute 43 G. 3. c. 57. ship proceeding with due dili- does not avoid policies on ships gence to join convoy from the sailing without convoy, unless port of her clearance, in case the party interested in the in. of the convoy being appointed surance was privy to or instryto sail from such other place; mental in the sailing without the master, however, giving convoy. ibid. Henderson v. the bond before-mentioned. Hinde, i Taunt. 250. n. See 4. Nor to any ship bound from likewise Webb v. Thomson, 1 any place in the United King- Bos. and Pul. 5. Anderson v. doms, to any place within the Pitcher, 2 Bos. and Pul. 164. 5. Nor to any ship be

From the two last cases it aplonging to the East India or pears, that the master of the Hudson's Bay Companies. 6. trading vessels should not omit Nor to any ship departing to obtain the sailing instrue.

same.

tions and orders delivered out obey signals? In short, what 1816. by the commander of the con communication can the provoy. In Anderson v. Pitcher, tected have with the protect- D'AGUILAR Lord Eldon observes, “ The ing force ?” But if the master

TOBIN. value of a convoy appointed by do all in his power to obtain Government arises from its sailing instructions, but is pretaking the ships nnder con vented from obtaining them by troul, as well as under pro badness of weather, or if they tection. But that controul are refused by the commander does not commence until sail. of the convoy, he is excused. ing instructions have been ob In such cases he would be ex. tained; nor can it be enforced cused, although there were a otherwise than by their means. warranty to sail with convoy. Without (sailing instructions) Vide Abbott on Shipping, 243. the ship does not stand in that and the cases cited, on this relation, or under those cir. last point, in the notes. The cumstances, in which she can convoy act is a very penal act, take the full benefit of the Go and therefore to be construed vernment convoy. If the fleet strictly. Vide Carstairs v. Allbe dispersed by a storm, how nut, 3 Camp. 497. Wainhouse is she to learn the place of her v. Cowie, 4 Taunt. 178. Wake rendezvous? If it be attacked v. Atly, ibid. 493. Ingham v. by the enemy, how is she to Agnew, 15 East, 517.

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