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actually sailed from Jamaica to England; as to the instance put at the bar of a convoy to the Cape of Good Hope, I entirely differ from the counsel on that point; for if government thought a convoy to the Cape was a sufficient protection to the EastIndia trade, and the usage were for the East-India ships to sail with a convoy only to the Cape, and to consider that as the East-India convoy, and no other convoy was appointed to the East-Indies, I should hold that the warranty was complied with; though I agree if there was another convoy to the EastIndies, it would be otherwise. The captain of a merchant-ship has nothing to do with, nor can he know the instructions from the Admiralty to the King's officers, but must take such convoy as he finds. I am therefore of opinion that there is no ground at all for this motion."

Mr. Justice Heath." I am of the same opinion. The owner of a ship, when he makes an insurance, cannot know the orders of the Admiralty respecting convoys."

Mr. Justice Rooke." The ground stated at the bar seems to me to be more fit for the jury than the Court, and the jury have found that the convoy was sufficient."

Lord Chief Justice Eyre." I am satisfied with the finding of the jury."

The rule for a new trial was therefore refused.

The sailing with convoy has added so much to the security of our commerce in time of war, that in the year 1798, an act of parliament passed for the purpose of compelling ships to sail with convoy, and by which also a considerable revenue was intended to be raised.

The first section of this act provides, that it shall not be lawful for any ship or vessel belonging to any of His Majesty's subjects (except as thereinafter is excepted) to sail or depart from any port or place whatever, unless under the convoy and protection of such ship or ships as may be appointed for the purpose,

That

That the master or other person having the charge or com- Sect. 2. mand of every such ship or vessel, which shall sail or depart under the protection of convoy, shall and is thereby required to use his utmost endeavours to continue with such convoy during the whole of the voyage, or during such part thereof as such convoy shall be directed to accompany and protect such ship, and shall not wilfully separate or depart therefrom upon any pretence whatever, without order or leave for that purpose from the officer having the command of such convoy.

It is also enacted that if the master or commander of any Sect 3. ship which is by this act required not to sail without convoy, shall sail without convoy; or having sailed with convoy shall wilfully depart therefrom, without leave first obtained from the person intrusted with the charge of such convoy, every such master shall forfeit roool. and in case the whole or any part of the cargo consisted of naval or military stores, the penalty is 1500l., with a power in the Court, where the action may happen to be brought, to mitigate the penalties, so as they are not reduced to a less sum than 50l.

By section the fourth, it is provided that in case of a sailing Sect. 4. without, or a wilful desertion of, convoy, every insurance or contract or agreement for any insurance upon such ship, or goods, wares or merchandise laden thereon, or upon any property, freight, or other interest arising out of the same, whereon insurances may lawfully be made, (and which shall be the property of the master or commander of the ship, so sailing without convoy, or wilfully quitting the same, or of any person interested in such vessel or cargo, who shall have directed, or been any way privy to, or instrumental in (a), causing such ship or vessel to sail without convoy, or wilfully to separate therefrom), shall be null and void, to all intents and purposes, both at law and in equity, any contract or agreement

(a) To vacate a policy of insurance upon this clause, which is so highly penal, it is not enough to shew that the ship sailed without convoy, by the instrumentality of an agent of the assured, unless it be shewn that the agent had authority from his principal for that purpose.

Lord Ellenborough held in another case, that as the law requires a ship to sail with convoy, the presumption will be that she did so, till the contrary is proved.

Carstairs v.
Allnutt,

3 Camp.497. Wakev. Atty, 4

Taun. 493

Thornton v.

Lance, 4Camp.231.

to

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Sect. 6. 28. June 1798.

A foreign

built ship, Britishown

ed, is not re

quired to be registered, and may thereforesail

to the contrary notwithstanding: and that nothing shall be recovered thereon by the assured for loss or damage, or for the premium, or consideration in nature of a premium, which shall have been given for such insurance: and if any party to such insurance, or any broker or other person shall transact a settlement on such insurance, or allow any money in account, on such insurance, every such person shall forfeit 2004

It is also provided, that the officers of the customs shall not permit vessels to clear outwards, till they have given bond, with one surety, in the penalty of the value of the ship, with condition that the ship shall not sail without, nor wilfully desert the convoy.

By the sixth section, this act is not to extend to vessels, not required to be registered by any acts then in force; nor to any ship, having a licence signed by the Lords of the Admiralty to sail without convoy, or by such persons as shall be duly authorised by them for that purpose; or to any ship proceeding with due diligence to join convoy from the port or place at which the same shall be cleared outwards, in case without con- such convoy shall be appointed to sail from some other port or place, except as to the bond hereby required to be taken upon the clearance outwards; or to any ship bound to or from any port in Ireland; or to ships bound from one port ture. Long to another in Great Britain; nor to ships in the service of the East-India, or Hudson's Bay, companies. (a)

voy, being within the

exception in

this clause

of the sta

v. Duff,

2 Bos. &

Pull. 209. Sect. 8.

Wainhouse
v. Cowie,

4 Taun. 178.
Ingham v.
Agnew,
15 East,
517.

Darby v.
Newton,

2 Marsh. R.

252.

By the eighth section, the act is not to extend to ships sailing from foreign ports, in case no convoy is appointed by the Lords of the Admiralty of England, or persons authorised by them at such foreign ports to appoint convoys, or to grant licences for sailing without convoy.

(a) The words, privy to, or, instrumental in, which are to be found in the 4th section, are not in this: and therefore where a person insures his goods on board a ship, which he knows is to sail without convoy, he is bound to see that she has a sufficient licence for the whole voyage, otherwise his insurance will be void. This will be the case, though the owner of the goods supposed and intended that she should have a sufficient licence, and although he lived at a distance from the port, and had no concern with the conduct of the ship, or obtaining necessary documents.

The

The Lords of the Admiralty are to give notice in the Gazette Sect. 9. that masters of ships shall have on board flags and vanes for the purpose of distinction, and of answering signals; and without having which they are not to be cleared outwards.

So much of the act of the 33 Geo. 3. c. 66. s. 8. as Sect. 10, makes the masters of ships under convoy liable to be articled in the Court of Admiralty for disobeying signals or other lawful commands of the commodore, or deserting convoy, and finable at the discretion of the said court, in any sum not exceeding 500l. and punishable by imprisonment, not exceeding one year, shall be painted on a board, and affixed on some conspicuous and convenient part of every ship which by this act is required not to sail or depart without convoy; and that in default thereof every master or other person, having the charge or command of any such ship, shall forfeit, for every such offence, the sum of 50l.

The eleventh section directs, that if any ship, required by Sect. II. this act not to sail without convoy, shall be in imminent danger of being taken by the enemy, the commander of the ship shall make signals by firing guns to convey information of his danger to the rest of the convoy, as well as to the ships of war under the protection of which he is sailing; and that in case he is taken possession of, he shall destroy all instructions confided to him, relating to the convoy; and every commander wilfully neglecting to make such signals, or to destroy such instructions, shall, for every such offence, forfeit a sum not exceeding 100l.

The remainder of this statute is employed in directing how the duties shall be raised and collected.

The third and last species of warranty, which falls under our consideration, is that of neutrality; or that the ship or goods insured are neutral property. This condition is very different from either of the two former; for if this warranty be not complied with, the contract is not merely avoided for a breach of the warranty, but it is absolutely void ab initio, on account of fraud. This ground was entered upon in the

chapter

Vide c. 10.

Woolmer v.
Muilman,
4 Burr.

1419.
1 Blac. Rep.
427.

chapter of fraud; and the principle, on which the difference turns, is this. A man may warrant that his ship shall sail with convoy; and if that condition be not complied with, it is not his fault, because it depends upon the acts of other men: but still he is the sufferer, for he loses the benefit of his contract. So also if he warrant to sail on a particular day, and do not, he is guilty of no crime; for that was a circunstance, the performance of which depended on a thousand accidents, such as wind, weather, repair, &c. but as he had expressly undertaken, he loses the effect of his policy by non-compliance. But in neither of these cases, as I have said, is the insured, making such a warranty, guilty of any offence. Not so with him, who warrants property to be neutral. That is a fact, which, at the time of insuring, must be within his own knowledge; and if he assert it to be neutral, knowing it to be otherwise, he is guilty of a wilful and deliberate falsehood, and incurs moral turpitude. In such a case, therefore, the contract between the parties is absolutely null and void to all intents and purposes.

Thus on a special case reserved for the opinion of the Court, it appeared that an action was brought for the recovery of a total loss on a policy of insurance made on goods, on board the ship Bona Fortuna, at and from North Bergen to any ports or places whatsoever, until her safe arrival in London, "war "ranted neutral ship and property." The ship, with the goods so being on board her, after her departure from North Bergen, and before her arrival at London, proceeding on her voyage, was, by force of the winds, and stormy weather, wrecked, cast away, and sunk in the seas; and the said goods were thereby wholly lost. The ship called La Bona Fortuna, at and before the time she was lost, was not neutral property, as warranted by the said policy. The question was, Whether under such cir cumstances the plaintiff could recover? Lord Mansfield, after hearing counsel for the plaintiff, stopped those for the defendant, saying, the point was too clear to be argued. There was a falsehood, with respect to the thing insured; for he insured neutral property, when it was not so: therefore there is no contract. We must give judgment for the

defendant.

An

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