Court Of Common Pleas, We...
t .:rrznL" tni urawo. i l n:s was an action on a policy of insurance effected on a ship anti cargo bound from London to aracaybo, in South America. The ship was laden with goods for the Constitutionai Government, and in the policy was a memorandum, stating that shle was to be free foam capture by an enemy. The policy itself, therefbre, went only to insure the cargo against "I the perils of the sea." The vessel ar rived off ilaracaybo, and wxhile distant about 20 miles from that place, andl about 9 miles from Fort San Carlos, she made a signal for a pilot, hut no Vilot coming out to her, she ran on the sands, and becaie a wreck. Ihe next (lay some lighters came out, and cook out the cargo and crew, and conveyed them on shore. It happened, however, that the Royal Government had got possession of' Mara- caybo before the arrival of the ship, and finding that the cargo was intended for the Constitutional Government, it was seized, and the crew made prisoners. Under these circumstances, the owner of the cargo brought his action against the underwriter as for a total loss * by the perils of the sea. ' It was contended on the trial, that the loNs was " by the capture of an enemy," whith was not meant to be covered by the policy. The jury. however, found a verdict for the plaintiff for a total loss. This verdict was aftet cards turned into a special case for the opinion of the Coitrt on the point of law. nir. Sergeant VAUGHA:r this day showed eause agaLinst the verdict for the plaintiff, and contended that it should be set aside, and entered for the defendants. The ship and cargo, he maintained, were not lost by the perils of the sea, but by cap ure of thie enemy, for all the goods had been taken out of the vessel, and would have been preserved for the owner but for such capture. As. however, the condition of the policy was, that the ship should be free from capture by an enemy, it was impossible that the plaintiff could have any legal claim to recover under that policy. r. Sergeant BOSANQU ET, tn Support Of the Verdict, contended, that the rotent the ship struc and became a wreck, -she Was a total loss "1 by perils of' the sea," anid that thie subse acut nosses. sion of the cargo by an enemny, mande no alteration in t~e oligation of the under-writer. He suibmitted, therefore, that the vrict ought to remain for the plaintiff. Lord Chief Justice BEST, in delivering the judgmnent of the Court, said, that when he first heardc the case, he wits of opinion that the verdict was a proper one, but this opinion was somnewhiat shaken upon hearing the remarks which hlad been made on the case of " Levyk and Janigon." However, oni a maiEture considerauion of all the cirdunm. hstances,hewasinducedtoreturn to hisoriglnal opinon,upon which he had nownodoubt. Itwasadndiitted that thevessel had struck and be- comeswreck,befhoreshe wa8taken possession ofby anenemy;butit wVas contended that the cargo wasi to be free from suchi capvture; so it was, but t&e underwriter had rio right to expect protection of' those goods by an enemy. Now, unles the enemy had interfered in this case, w lat woulti have been the situation of the cargo? It must undoubtedly have perished; an e ihed, vrhat oretonep --MnI ifi- a oprse,wa by prilsof t~-- - 1 -YI-u LIE IS t Was inot by peris of te a?"' And if so, there could be ro doubt but the underwriter waws liable. it was bY no mneanis necessary to constitutte a totallo,ththe ese ordo to pieces, and the cargo be scatrered by the wves.eL whould R s~uPpose q.3yessel getting on a rock, an hundred miles from any port ; the shnip 'might be whole, and thie cargo unidamaged ; but neverthe.. loNS, if it was impossmible to get her off, she arid her cargo would be; as much a total lost aes if she h d goe to pieces. The fact of her aftrwads ein fond nd eizd ~ aneney, oDuld imake no dif- ferece n te labiityof he ndewrier o te policy. Under thos drcmstaces,he ws ofopinon hat the verdict for the The oher udgesconcrred ii tispinion, and the decision of UVUIT OF COMMON PLEAS, WE DNESDAY, JuNE 30. HIAM V. CORTIFT.