Routh against Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1811 |
| Date | 01 February 1811 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 1069
IN THE COURT OF KING'S BENCH.
Referred to, Watson v. Swann, 1862, 11 C. B. (N. S.) 770; Mackenzie v. Whitworth, 1875, 1 Ex. D. 43; Connecticut Fire Insurance Company v. Kavanagh (1892), A. C. 479. For further proceedings see S. C. 13 East, 274.
[428] eotjth against thompson. Tuesday, June 20th, 1809. After a proclamation by the King in Council to detain and bring into port all Danish vessels, a hired armed ship pf His Majesty took and carried into Lisbon a Danish vessel, and sold her cargo there towards defraying in part the expence of necessary repairs, but without the authority of a Court of Admiralty, and afterwards took in a cargo on freight for England, and sailed on the 3d of November from Lisbon ; on which day hostilities were declared against Denmark by another proclamation of the King in Council; after which an insurance was made on the ship and freight by order and on account of the captors. Held that a statement in a case reserved, that the insurance was on account of the captors, precluded the consideration whether a count in the declaration could be sustained averring the interest to be in the Crown, and the insurance to be made on account of His Majesty; and that the captors had no insurable interest, as they could claim nothing of right, but only ex grati& of the Crown; the Dane having been seized and detained before any declaration of war against Denmark, and the captors having no claim to.prize under the Prize Acts. But as there was no fraud in the captors in effecting the policy, nor any thing illegal in the .voyage or insurance; Held that the assured were entitled to recover back the premium, which had not been paid into Court. [Referred to, Watson v. Swarm, 1862, 11 C. B. (N.. S.) 770; Mackenzie v. Whitworth, 1875, 1 Ex. D. 43; Connecticut Fire Insurance Company v. Kavanagh [1892], A. C. 479. For further proceedings see S. C. 13 East, 274.] This was an action upon a policy of insurance tried before Lord Ellenborough C.J. at Guildhall, in which a verdict was taken for the plaintiff for 2761. 7s.; subject to the opinion of the Court on the following case. That on the 2d of September 1807 an order by the King in Council was made, of that date, which ordered that no subjects should be permitted to enter and clear out for any of the ports within the dominions of the King of Denmark until further orders; and that a general embargo should be made of all vessels belonging to the subjects of the King of Denmark then within or which should thereafter come into any of the ports, &c. of His Majesty's dominions, together with all persons and effects on board such vessels; and directing the commanders of His Majesty's ships of war and privateers to detain and bring into port all vessels belonging to the subjects, or bearing the flag, of the King of Denmark; but that the utmost care should be taken for the preservation of all and every part of the cargoes .on board any of the said vessels; so that no damage or embezzlement whatever be sustained. And the Lords Commissioners of His Majesty's Treasury were to give the.necessary directions therein, as to them might appertain. This Order of Council was gazetted on the 5th of September; and on the 10th the officers, crew, and soldiers on board [429] His Majesty's hired armed ship called "The Duchess of Bedford," in the pleadings mentioned, took and detained off the coast of Lisbon the Danish ship " Knud Terkelson," loaded with salt, the property of Danish subjects, and sent her into Lisbon, being in a very leaky state, and requiring considerable repairs, which were then performed; and the salt was sold towards defraying the expence of such repairs, but was insufficient for 1070 ROUTH V.THOMPSON n EAST, 430. that purpose; but no proceedings were instituted in any Court of Admiralty. The ship being repaired, and there being at the time a considerable demand at Lisbon for tonnage to convey British property to England, the captors by their agents took on board of her a cargo of wines and other merchandize to be carried to London on freight, which would have amounted in the event of the ship's arrival at London to 15101. On the 3d of November 1807 another order of the King in Council was published, reciting that the King of Denmark had issued a declaration of war against His Majesty and his subjects; and ordering that general reprisals should be granted against the ships, goods and subjects of the King of Denmark, excepting any vessels to which His Majesty's licence had been granted, &c.: so that as well His Majesty's fleets and ships, as also all other ships and vessels that shall be commissioned by letters of marque, or general reprisals, or otherwise, by His Majesty's commissioners for executing the office of Lord High Admiral of Great Britain, shall and may lawfully seize all ships, vessels, and goods belonging to the King of Denmark or his subjects, &c. and bring the same to judgment in any of the Courts of Admiralty within His Majesty's dominions, &c. On the 3d of November 1807 the ship with her cargo of wines, &c. on board [430] sailed with convoy from Lisbon on the voyage insured, and in December following was lost by the perils of the sea. The plaintiff on the 12th of November, by order and on account of the captors, effected the policy declared on at and from Lisbon to London, at a premium of 12 guineas per cent., to return 51. per cent, for convoy: and the insurance was declared to be 35001. on the ship "Knud Terkelson," valued at 35001. and on freight; but the freight was not valued ia the policy; and the defendant subscribed the same for 3001. and received the premium thereon. None of the officers or crew of "The Duchess of Bedford " are owners of that ship; neither is His Majesty the owner thereof, otherwise than as having hired the same as an armed ship, to be employed as such for a time in His Majesty's service. The defendant has not paid the premium into Court. If the Court were of opinion that the plaintiff was entitled to recover, the verdict was to be entered for him, on such counts, and for such sum as they should direct: if otherwise, a nonsuit was to be entered ; and this ease was to be turned into a special verdict, if the Court should so think fit. ' . The case was argued on a former day by Eiebardson for the plaintiff, and by Carr for the defendant: and the questions made were, whether the detainers or captors had an insurable interest in the ship and freight on their own account, founded upon a lawful possession, with the certain expectation, as it was called, of a grant from the Crown on the condemnation of the prize. Or if they had no such insurable interest suo jure, whether they could sustain the action upon a count in the declaration alleging the interest to be in His Majesty, and the insurance to have been made on his account. [431] Carr denied that the Crown had adopted the Act of Insurance in this case; on which ground principally he distinguished this ease from Lucena v. Cra/wfurd. The subject has been so exhausted in the full report of the case of Lucena v. Cmwfurd (a) in the House of Lords, that it is needless to repeat the arguments and authorities, all of which are there collected. Lord Ellenborough C.J. said, that the case involved a question of considerable magnitude; and that the Court would consider of it. And at the end of the term his Lordship delivered their opinion. This was an action on a policy of insurance upon ship and freight from Lisbon to London. The ship was a Dane, had been seized as such after His Majesty's proclamation of 2d September 1807, by His Majesty's armed ship " The Duchess of Bedford," had received some repairs at Lisbon, and had taken in a cargo there for London. In one count the interest is averred to be in His Majesty, and the insurance is stated to have been on his account; and in another, the interest is averred to be in the commander, officers, and crew of " The Duchess of Bedford;" and the insurance is stated to have been on their account. The case expressly states that the policy was effected on account of the captors; and that statement precludes us from considering it as effected on account of the Crown. Had there been no such specific statement, it might have been open to us to consider, whether the policy were not referable to the interest of the Crown : but after a distinct statement that it was effected [432] (not on behalf of the (a) 2 New Rep. 269, and vide Park on Insurance, (6th edit.) 300. 11 EAST, 433- ROUTH U THOMPSON 1071 Crown, but) on account of the captors, it must be referred wholly to them, and the plaintiff must recover or fail according,as they have or have not a right to aver an interest in themselves. This brings us to the question, whether they had an insurable interest1? Their right in this respect has been put upon two grounds; first, that they had a well-grounded expectation, warranted by the practice of the Crown in similar cases, that the ship and freight, had there been no loss, would have been granted to them : and, secondly, that they had the lawful possession, and were liable either to the Crown or the foreign owner, for the safe custody of the vessel: and that on...
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