Majority
p. 745Governeur and Kemble against The United Insurance Company. The Same against The Same.
Headnote
If a commander of a convoy make a friendly capture of one of his convoy, it will not exonerate the underwriter, being a case of abandonment as for a total loss.These were two causes, the one a policy on the cargo of the ship Indiana, the other on a similar policy on that of the barque Bekkeslcow; verdicts having been rendered for the plaintiffs, two questions were submitted without argument.
1st. Whether the verdicts for the plaintiffs were agreeable to evidence.
2nd. Whether they were agreeable to law.
The material facts in both cases were the same. The vessels and cargoes were Danish, insured ,as such at war premiums, *at a time of actual hostility [*593] subsitsing between Denmark and Great Britain.
The circumstances on which the question submitted arose were, that these policies were affected for account of a Mr. Murphy, a merchant of the island of St. Thomas, on voyages from thence to the United States. That Captain Barry, commander of the American ship of war United States, being on the West India station, for the protection of the American commerce, was requested by Mr. Murphy, on whose account the insurances were made, to take both vessels under his care, and protect them all in his power. That for this purpose Captain Barry, when at sea
p. 746
took from the masters of both vessels their papers, : gainst their opinion and consent, and put on board of them p*ize masters, ordering them for the United States, as prizes to his ship. That after parting from the ship United States, they were severally captured, the one carried into Halifax, and there acquitted on payment of costs; the other into Bermuda, and there condemned as good and lawful prize.
The conduct of Captain Barry was cer- • tainly not authorized by the request of Mr. Murphy. He acted however, with the best intentions; and his measures appear to me rather to have lessened than to have increased the risks. The acquittal of the one vessel was probably owing to them; for their papers, showing the property to be Danish, must have insured the condemnation of both. I can see no reason, therefore, why the underwriters should not be held to their responsibility, at d am of opinion the verdicts are neither against law n r evidence.
Judgment for the plaintiffs.