Bell and Others, against Carstairs
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 1811 |
| Date | 02 July 1811 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 646
IN THE COURT OF KING'S BENCH
Referred to, Dudgeon v. Pembroke, 1874-77, L. R. 9 Q. B. 594; 1 Q. B. D. 96; 2 App Cas. 284; Trinder Anderson and Company v. Thames and Mersey Marine Insurance Company, [1898] 2 Q. B. 123.
bell, and others, against carstairs. Tuesday, July 2d, 1811. If a neutral American ship, insured here, be captured by a French ship, and condemned in a French Court, as prize^upon the express ground stated in the sentence of condemnation, (which is evidence for this purpose,) that the ship was not properly documented according to the existing treaty between France and the United States of America, (conjointly with the suppression of papers by the captain after the capture; on which no opinion was given by the Court;) the neutral assured cannot recover their loss against the British underwriter, although there was no warranty or representation that the ship was American ; the neglect of the shipowners themselves, who are bound at their peril to provide proper national documents for their ship, being in such a case the efficient cause of the loss. Neither can the agent of the assured, some of whom were also interested in the cargo as well as the ship, recover for the loss of the cargo insured, which was also condemned at the same time and for the same reason; such assured of the goods being implicated in the same neglect in their character of ship-owners. But it is otherwise in the case of a mere assured of goods, who is not answerable for the proper documenting of the ship, without a warranty of representation of her national character. [Referred to, Dudgeon v. Pembroke, 1874-77, L. E. 9 Q. B. 594; 1 Q. B. D. 96; 2 App. Cas. 284; Trinder Anderson and Company v. Thames and Mersey Marine Insurance Company, [1898] 2 Q. B. 123.] This was an action by the assured against an underwriter, on a policy of insurance effected by the plaintiffs on the ship " Eliza," at and from Virginia to a market in Holland or Germany, with leave to touch at or off Falmouth for orders, and also with liberty in that voyage to proceed to any port or places whatsoever, to seek, join, and exchange convoy, to take papers and clearances for any ports or places whatsoever, at a premium of 12 guineas per cent., with various returns. The policy stated the insurance to be on ship valued at 40501., on freight valued at 30001., and on certain goods specified at different valuations, and on other goods. The declaration stated that the ship sailed upon the voyage insured with the specified cargo. In one count, Bell, Cummipg, and C. and F. Whittle and Morgan, were alleged to be interested in the ship and freight; and Bell, Gumming, and C. and F. Whittle in the cargo, to the amount insured; and in another count the interest in ship, freight, and cargo, was laid generally in Bell, Gumming, and C. [375] and F. Whittle. The declaration further averred that the ship and cargo were totally lost by capture in the course of the voyage, and that the assured had expended a large sum in endeavouring to recover them. At the trial before Lord Ellenborougb, C.J., at Guildhall, a verdict was found for the plaintiffs for 3041. 7s., subject to the opinion of the Court on the following case. The policy was effected by the plaintiffs as agents for Bell, Gumming, C. and F. Whittle, and Morgan, who are citizens of the United States of America, and were interested in the ship, freight, and cargo, as averred in the declaration. These persons all resided within the United States of America at the time when the insurance was effected, and have continued to reside there ever since. No warranty or representation was made to the'defendant that the ship or cargo were American ; but both the ship and cargo were American in point of fact. The ship sailed from Norfolk in Virginia on the 10th of July 1809, with a cargo of the description mentioned in the policy, and on the 10th of August following was captured off Plymouth by the French privateer " Jean Bart," arid carried into Brehat; and the ship and cargo were afterwards condemned by a sentence of the Imperial Council of Prizes at Paris; the same being a Court of competent jurisdiction on this subject. In the narrative part of that sentence it is stated that there was found on board the said ship, among other papers, M EAST, 376. BELL V. CARSTAIRS 647 the following. A passport, in four languages, in the usual form, dated at Norfolk, 27th June 1809, signed by the President of the U. S. countersigned, and sealed; stating Norfolk to be the place of departure, and Tonningen the place of destination. It states, as do all the other passports, "That, [376] prior to the departure, the captain shall make oath that the ship belongs to none but citizens of the U. S., and that the act of such affidavit shall be written at foot thereof; the form whereof is in substance printed thereunder: the blanks are filled up with the hand, but it is neither signed nor sealed." The sentence goes on to allege that the following amongst other reasons for confiscation presented itself in the memorials. " The passport expresses that the captain is to make oath, previous to her departure, that the ship belongs to citizens of the U. S./and that this act is to be written underneath the passport. Now the form of this affidavit, it is true, is printed according to custom; the blanks are even filled up with writing; but there is neither seal nor signature thereto. It is, therefore, a nonentity, and the passport, which necessarily supposes it, is likewise of no value. According to the Convention of the 8th Vendemaire, 9th year, an American captain who shall have lost his passport is permitted to supply that defect by other proofs of neutrality; but here it is not the case. Jacob Vickery is furnished with a passport, which the public officer has refused to sign, no doubt because the nationality of the captain, or that of the owners, did not appear to him sufficiently substantiated. The passport, therefore, has continued to be nothing more than a form; it is destitute of that which ought to complete it; and the captain has navigated without a passport. This is what the Council decided on the 16th Thermidor, 8th year, in confiscating the prize made by the privateer the 'Spartiate,' of the American ship the 'Republican,' which had a passport in which the affidavit was not signed." After further stating the process verbal and other proceedings that had been had, the sentence proceeds to condemn the ship and cargo [377] in the following terms. "Whereas it appears by the pleadings, that Captain Jacob Vickery, while at sea, took some papers out of his trunk previous to his going aboard the privateer, and delivered them to the second mate, who has, since his arrival at Brehat, caused them to be returned to the captain. That this fact is corroborated by John Thomas, chief mate, and by William Barker and John Robinson, seamen; and that these papers having never since re-appeared, no doubt remains but they have been withdrawn, and that there is the greater reason to apply, with all its severity, the third article of the Regulation of the 26th July 1778. That the denial of the second mate, to whom the papers were given, and the tergiversations of the captain, constitute a sufficient proof that, if they had come to light, they would have betrayed the prize. That in truth the captain (although contradicting himself in his interrogatory and in his declaration before the Council) pretended that the papers, by him given at sea to his second mate, were no others than the second set of papers for Amsterdam, which, on the 12th of August, the day of their entry into Brehat Roads, he had, in the presence of several persons, delivered to the officer of police, and which were added to the package containing the papers which the privateer had taken possession of. But the contrary is evident, as well from the verbal process...
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