Robert Brown, Junior - More v. William Maxwell and Others, Trustees of Alexander Campbell and James Campbell - Ada - Ivory [1824] UKHL 2_Shaw_373

UKHL
Robert Brown, Junior - More v. William Maxwell and Others, Trustees of Alexander Campbell and James Campbell - Ada - Ivory
[1824] UKHL 2_Shaw_373
An insurance having been made on goods to be exported from Leith to Gottenburgh, (at a time when Sweden was at peace with Britain, but when the importation of British goods was prohibited), with power to carry simulated papers, and any flag whatever; and the vessel having sailed on the voyage, but having been captured by a British ship under a mistake, and brought back to Leith; and having afterwards been released; and having, after war was known to have been declared by Sweden against Britain, again sailed to Gottenburgh; and having been captured by the Danes, and, together with the goods, condemned; —Held, (reversing the judgment of the Court of Session), That the underwriters were liable.In the month of November 1810, the appellant, Robert Brown, junior, a merchant in Glasgow, was desirous to export a quantity of sugar from Leith to Gottenburgh. At this time Britain was engaged in a most active war with France, and Buonaparte had established the continental system with the view of excluding the goods of British merchants from the continent of Europe. In consequence of this, British merchants had recourse to simulated papers, in order to get their goods landed on the continent and sold; and the British Government was in the practice of granting licenses which protected them against seizure by the British cruizers. * Sweden at this time stood in a position of neutrality,

Footnote

* The history and origin of these simulated papers were thus explained by the appellant in one of his pleadings to the Court of Session:—
“Certain Frenchmen, who had emigrated to America, and who were well acquainted with the forms of clearances used in the American custom-houses, and with the form of what was called a certificate of origin, (being a document introduced by the French authorities for the purpose

Page: 374 ↓

Footnote

of accompanying cargoes of their own colonial produce), suggested an expedient to the British merchants, by which the effects of the decrees above-mentioned might be defeated, and British colonial produce introduced into the prohibited ports.”—“The expedient suggested by the French emigrants was this:—They proposed, that vessels sailing with colonial produce from the ports of Great Britain should be manned by foreigners, and should be documented with papers, which they engaged to fabricate, purporting that they had cleared out from America, and were carrying French colonial produce. The great skill with which these emigrants were able to forge the signatures, and to imitate the seals of the officers whom they thus personated, enabled many a neutral ship to assume the appearance of having cleared out from a port in America, though she actually sailed from Great Britain.”

Page: 375 ↓

On the 15th of November the Maria Francisca sailed from Leith on her voyage to Gottenburgh along with other vessels, under convoy of the Childers, a British sloop of war. She was, however, separated from the Childers in a storm; and after obtaining convoy under another British ship, the Gluckstadt, she was deprived of her protection by another storm in the course of the night, and was boarded by the British gun-brig Bold. The officer of this vessel, on coming aboard, conceived that the Maria was a Dane, and therefore addressed the master in the Danish language; and the master, supposing that the Bold was a Danish ship of war, acted upon that footing, and concealed his British license, in consequence of which she was captured and carried into Leith, where she arrived on the 31st of December. It was not alleged that there was any blame attachable to either party for this seizure.In the meanwhile, Bernadotte had been elected Crown Prince of Sweden, and on the 12th of November war was declared against Britain, and a proclamation was issued prohibiting all British vessels from entering any of the Swedish ports, and “all importation into the kingdom of such goods, or colonial goods, of whatever origin the same may be, or under whatever flag they may arrive, under pain of confiscation.” Although the declaration and proclamation were issued prior to the sailing of the Maria, yet they were not known in Britain, nor for several days after she had been sent into Leith by the Bold. On her arrival there, the appellant intimated to the underwriters, that as the Maria had been seized, he held the condition of the policy to have come into existence, and therefore abandoned the cargo to them, and demanded payment of the loss. To this, however, they would not accede, but insisted that the voyage should be prosecuted. After some delay the Maria was released, and the appellant having obtained a new license, she

Page: 376 ↓

The ship still carried the same simulated papers as formerly, and after accompanying the convoy for some time, she was separated from it on the 23d of April in a gale of wind near Shetland, and was then captured by the Danish privateer Klempaa, and carried into Bergen, where the simulation of the papers having been detected, both the ship and cargo were condemned. Several of the underwriters immediately settled in terms of the policies; but the respondents, alleging that the second sailing constituted a new voyage, and that the declaration of war created a new risk, maintained that they were not liable for the loss.The appellant then brought an action against them before the Admiralty Court, and on the 17th February 1814 the Judge-Admiral (Murray) pronounced this interlocutor:—British license to the officer of the Bold, who came on board, owing to his suspecting him from his language to be a Dane, and, having thus concealed his license, was considered a lawful prize; and therefore finds, that this in no way annulled the policy: Finds, that in winter 1810–11 war was declared between Sweden and Great Britain, but that this made no difference on the insurance made on the said vessel; because British colonial property having been long before prohibited to be imported into Sweden, the sugars insured were to be covered by simulated American papers, with a British license; and as the property was understood, by both underwriters and insured, to be covered as apparently American, a declaration of war by Sweden against Great Britain made no difference on the risk;—and, 2dly, The declaration of war made no change in the real existing relations between Sweden and Britain, not only as præmia of insurance rather fell than rose after the declaration of war, but as Government allowed fleets to sail from the ports of Britain to Gottenburgh with British licenses, and under convoys, in precisely the same way after the war as before it was declared: Finds this latter fact fully proved by a certificate by John Wilson Croker, Secretary to the Board of Admiralty of Great Britain, dated 29th November 1813, and which also ascertains that the said Maria Francisca sailed again from Leith on the 15th of April 1811, under convoy of his Majesty's gun-brig Archer, commanded by Lieutenant James Lindsay Carnegie, for Gottenburgh in Sweden, and on all hands it is admitted, that the same cargo of sugar was on board: Finds, that the Maria Francisca, with the said sugars on board, was captured on said voyage by the Danes, and carried into Bergen, where she and her cargo were condemned as lawful prize of the captors; and, therefore, repels the defences.”
“Finds, that a cargo of sugars on board the Maria Francisca was, by policy of insurance dated the 17th November 1810, insured at the value of L. 2300 sterling to the pursuer by the defenders, at and from Leith to Gottenburgh, until the safe landing of the sugars, with liberty to seek and join convoy, and carry simulated papers and British license, and to sail under any flag; and the underwriters likewise agreed, in case of loss, capture, seizure, or detention, by any power whatever, or any cause whatever, to pay a loss, within two months after receipt of advice by the insured, by bills at four months, without waiting for official documents; and the premium was twelve guineas per cent, to return two pounds per cent for sailing with convoy and arrival: Finds, that in November 1810 the Maria Francisca, with a British license and simulated American papers, sailed from Leith with the sugars on said voyage, under convoy of the sloop of war Childers; from which having been separated in a storm, she afterwards found convoy under the Gluckstadt, from which she was also separated in the night; and having been captured by the gun-brig Bold, was brought to Leith Roads, where she was some time afterwards restored to her owners; and that her being thus brought to Leith Roads was innocently occasioned by her captain having been afraid to shew his

Page: 377 ↓

The respondents having presented a petition, the Judge-Admiral refused it, and at the same time issued this note:—
“That the Maria Francisca actually sailed for Gottenburgh, is proved by official documents. It is therefore asserted, contrary to evidence, that she did not sail for that port. It is believed, too, that after she sailed the underwriters got notice of her having sailed. They did not then declare the policy null. If they had done so, a new one might have been made, leaving open the question of premium due. They took their chance of the vessel performing her voyage, and, when lost, they refuse to indemnify the owners.”
The respondents then brought the case under the review of the Court of Session by a suspension, and

Page: 378 ↓

“1 st , Whether the second sailing was the voyage insured by the policy? 2 dly , Whether, if it was not, the policy could be extended by the verbal agreement, or by the mere understanding of the parties, as alleged by the charger?”
And it was added, “If, in point of law, the voyage was ended by the detention, and could not be continued by verbal agreement, there is no question of fact to try. If otherwise, then a special verdict upon the general issues would raise the question to be decided by the Court of Session with greater certainty than any attempt to attain that end by special issues previously settled. The strong probability being, that some omission in the issues might leave the question untried, and so render the proceeding abortive.” After hearing parties on these points, his Lordship pronounced this interlocutor:—not disposed to acknowledge their right to abandon: That although the vessel remained in the port of Leith from the 31st of December 1810 till the 15th of April 1811, when she sailed under convoy for Gottenburgh, yet the fact of this long detention of the ship at Leith could not prevent the owners from prosecuting the voyage insured, it being proved that she had no opportunity, after she was brought back to Leith, of sailing with convoy earlier than the 15th of April: That the declaration of war between this country and Sweden during the time when the ship lay at Leith, after she had been brought back by the Bold gun-brig, and the fact of the owners of the goods insured and the master of the ship being in the knowledge of war having been declared between the two states, formed no legal bar to the Maria Francisca proceeding on her voyage, seeing that on this occasion she sailed with a British license, and with convoy, bound for the port of Gottenburgh, as is proved by the certificate of the Secretary of the Admiralty: Therefore, on the whole, with reference to the first point, finds, that the second sailing must be held to be a continuation of the voyage insured by the policy, and which was begun on the 15th of November 1810; and that if the insurers are to continue to contest this point, it will be incumbent on them to undertake to prove that the seizure and detention of the ship by the Bold gun-brig happened through the fault of the master of the Maria Francisca, or that the detention at Leith, from the 31st of December 1810 to the 15th of April 1811, was owing to his fault, or that of the owners: That the above findings render it unnecessary to pronounce any decision on the second point of law, which is stated in the report of the clerk of the Jury Court; and appoints the parties to enrol the cause, in order that the suspenders may state whether they will undertake to establish, by evidence, the matters of fact above referred to, viz. that the seizure and detention of the ship by the gun-brig Bold was occasioned by the fault of the master of the Maria Francisca, or that the detention at Leith, from the 31st of December 1810 to the 15th of April 1811, was owing to his fault, or that of the owners.”
“Finds, with reference to the first point above stated, that long after the Swedish proclamation of April 1810, prohibiting the introduction of British colonial produce into Sweden, the policy of insurance mentioned in the pleadings having been entered into, and the Maria Francisca having sailed on the 15th of November 1810, with a British license, and with simulated papers, on the voyage insured, she was, in the night betwixt the 5th and 6th of December 1810, after she had proceeded as far as the Scaw, taken possession of by the gun-brig Bold, and was brought back to Leith on the 31st of December; and finds, that according to the charger's account of the facts, this seizure and detention of the ship happened without any fault on the part of the master: Finds, that on the supposition of the master not having been to blame, with regard to the seizure of the vessel and her return to Leith, the circumstance of her having been so seized and sent back formed no legal bar to her afterwards prosecuting the voyage insured, any more than would have been the case if the ship had been detained, and had been driven into any other port by bad weather or other accident: Finds, that neither did the fact of the owners having intimated an intention to abandon the cargo to the insurers after the vessel had been forced back to Leith, and which fact is proved by the letter of 10th January 1811, form any legal bar to the vessel afterwards proceeding on the voyage insured, when the owners learned that the insurers were

Page: 379 ↓

The respondents having declined to undertake a proof of these facts, his Lordship repelled the reasons of suspension, and found the letters orderly proceeded. The respondents then reclaimed to the Inner-House, and their Lordships, after ordering a condescendence “of the facts they aver and offer to prove tending to establish the change of the voyage, and alteration of risk,

Page: 380 ↓

Against these judgments of the Inner-House, the appellant entered an appeal to the House of Lords, and contended that they were erroneous, —1. Because the vessel and cargo were lost in the prosecution of the original voyage, and by one of the risks expressly insured against by the respondents and the other underwriters. In support of this proposition he maintained, that there had been only one, and not two voyages; that the voyage commenced when the vessel sailed in November from Leith; and that the circumstance of her having been detained and carried back to Leith by the Bold, was no more a termination of the voyage than if she had been sent into any other port, or as if she had been driven back by stress of weather: That if so, then the circumstance of war having been declared subsequent to her first sailing, could not deprive the appellant of the benefit of the policy, because, had it not been for the detention by the Bold, she would have proceeded on the voyage; and it was not alleged, that if, in the course of it, or on arrival at Gottenburgh, she had been seized and condemned, the underwriters would have been liberated. It was true, that before resuming the voyage in the month of April, a new license had been obtained; but this was necessary, both because the period of the first one had expired, and because, as Sweden was now a hostile power, it was requisite that the British Government should permit the trade to be carried on with the enemy. But this, so far from being prejudicial to the underwriters, was beneficial to them, seeing that without such a license she would have been liable to be seized by any British ship of war, and condemned for carrying on trade with the enemy, so that the risk was thereby diminished.2. Because the declaration of war between Sweden and Great Britain, in point of fact, produced no difference in the risk of trading between the two countries from that which had previously

Footnote

* See 1. Shaw and Ballantine, No. 462.; and Fac. Coll. No. 173.; where the opinions of the Judges are given at full length; and from which it appears that all the Judges concurred in the interlocutor except Lord Craigie.

Page: 381 ↓

3. Because, as the vessel was to sail under simulated papers, and from these papers she appeared to be an American carrying an American cargo, and the respondents had become bound to insure her safe arrival at Gottenburgh in that character, they truly came under an obligation of insurance, not upon a British ship or cargo, but on an American one; and therefore the declaration of war between Sweden and Britain could no more affect such an insurance, than if war had been declared between France and Turkey. And,4. Because, as the vessel was condemned in respect of carrying simulated papers, and there was a special contract that she should safely sail under these simulated papers, and that she should not be affected by any laws or regulations proceeding from the British or Swedish Governments during the existence of the voyage, the respondents were liable under the policy.

By the respondents, on the other hand, it was maintained, —

1. That at the period of the insurance, and when the vessel sailed in November, Britain and Sweden were at peace with each other; and the proclamation issued by the latter country declared, not that the ships carrying British goods should be confiscated, but only that they should ‘be ordered off,’ so that there was no danger of confiscation; and consequently, the risk which was undertaken was very different from that which must exist in a time of war: That before the second sailing, the appellant was perfectly aware of the declaration of war, and consequently, that the Swedish ships were anxiously searching the seas for vessels carrying British goods; but nevertheless the appellant, without entering into any new agreement with the respondents, sent off the vessel under this great change of circumstances; and therefore this must be held to have been a new voyage, and a new risk: That it was true that a new license had been obtained; but although this might protect the appellant from the pains of law for trading with an enemy, yet it could not affect the rights of the respondents.2. That the declaration of war had further a most material effect upon the contract, because it was no longer possible to

Page: 382 ↓

3. That it was no doubt true, that the respondents had permitted the vessel to carry simulated papers; but that permission only had the effect of putting it in the appellant's power to pass off his goods as neutral, and to expose them to that particular species of risk to which a discovery that they were truly British goods might render them liable at a time when the two countries were at peace; but the respondents did not insure that the goods should be dealt with in all respects as American. And,4. That as the second voyage and risk were different, the policy thereby came to an end; and consequently, the respondents could not be liable for the capture of the ship by the Danes.The House of Lords “ordered and adjudged, that the interlocutors complained of be reversed, and that the reasons of suspension be repelled, and the letters be found orderly proceeded.”Lord Gifford .— My Lords, There is a case which was lately heard before your Lordships—of Brown v . Maxwell. This was an appeal to your Lordships' House against an interlocutor of the Court of Session, which had been heard before them, arising out of a policy of insurance dated so long ago as the year 1810, by which the appellant, Mr Brown, who had shipped on board a vessel called the Maria Francisca a quantity of sugar, had insured the goods on board that vessel on a voyage from Leith to Gottenburgh, with liberty to carry simulated papers and a British license. My Lords, it is well known to your Lordships, that at that time endeavours were made by the French Government to prevent the importation of English goods and colonial produce into the continent, and that, in consequence of that, vessels at that time obtained licenses from the British Government to carry simulated papers, in order to enable them, if possible, to carry colonial produce, particularly to Sweden; and in this case a license was obtained from the English Government for this vessel to carry simulated papers on the voyage. My Lords, after this insurance had been effected, the vessel, on the 15th of November 1810, sailed from Leith for Gottenburgh; but in the course of her voyage, before she had arrived at her port of destination, she was detained by an English vessel called the Bold, suspecting her to be a Danish ship, and was brought back

Page: 383 ↓

My Lords,—This case has been argued with great ability at your Lordships' Bar with reference to the law of Scotland, and with reference to the law of England; for the law of England upon this subject is undoubtedly the same as the law of Scotland: but, as your Lordships are aware, questions of this sort have been much more discussed in the courts of this country—there have been many more decisions in the courts of this country—and therefore reference has been made at the hearing to English cases upon this subject. My Lords, I apprehend that it has been established, and indeed must be so from the

Page: 384 ↓

But it has been argued at the Bar (not that there is any decisive evidence in this case) that the vessel had altered her destination; for that, from the circumstance of war having broken out, from the circumstance of Sweden having prohibited the entrance of all colonial articles into her ports, it is impossible that she could have it in her intention to go from Leith to Gottenburgh; and they rely in support of that view of the case on a letter which has been produced, dated 30th March 1811, which is a letter from Mr Brown, the appellant, to Messrs Carnegie and Company of Gottenburgh, the consignees of the cargo, in which he says, “I shall instruct the captain to keep at a safe distance from the shore when he arrives, and inform you of his arrival.” In answer to that letter there was another from Messrs Carnegie and Company, which undoubtedly is no evidence in my view of the case; but in that letter they write as follows:—

trade.”

“We observe by your esteemed favour of the 30th ultimo, that you had resolved on letting the Maria Francisca proceed with the cargo, which we would not have advised; for though several cargoes have been smuggled on shore from the vessels in the Roads, it has been attended with great expense and danger. The risk will be much more in summer than in winter, when the long nights favour such business; and Government are now adopting severe measures to crush this clandestine

Page: 385 ↓

Your Lordships will perceive the original voyage was, if I may use the expression, a smuggling voyage, because when the policy was underwritten it was impossible for a British ship to have gone to the port of Gottenburgh as a British vessel; the only chance she had was to carry simulated papers, affecting to belong to a different country, and affecting not to have brought the colonial produce from Great Britain. That was the original voyage contemplated by the policy: the risk was increased, most probably, by the declaration of war issued in the mean time by Sweden, and which issued during the progress of her original voyage from Leith to Sweden, and there was greater care taken to prevent the importation of colonial produce into Sweden; but they argue from these circumstances that it was impossible, under these circumstances, she could have intended to go to Gottenburgh.My Lords,—I ought to state two propositions of law which were advanced, and which are not disputed in this country or Scotland:— That where a vessel sets out on a voyage insured, and an intention is formed to deviate from that voyage, but before the intention to deviate has been carried into execution, the vessel is taken, the policy is not affected. Where, however, she sails on a particular voyage, and that voyage has afterwards been changed, though in the second voyage she may set out on a route which would be the same route as far as she had proceeded to the original place of her destination, still, if the voyage be actually changed before she set out, the policy is gone: whereas, if she has an intention at a certain point to deviate from the voyage, but before she comes to the deviating point she is taken, the policy is still in force. Now the question is, Whether, before she set out the second time, this policy having attached, —for she had set out originally on her voyage to Gottenburgh, —whether when she set out the second time her intention was this—Get to Gottenburgh if you can, but if you cannot, you must remain off Gottenburgh, and dispose of your goods as well as you can? If that was her intention, but before she arrived at that place at which it was necessary to decide, she was taken, the case comes within those principles, that she had an intention, under certain circumstances, to deviate from the voyage insured, or not to complete the voyage insured, but that, before it was necessary to come to a determination, she was taken. Then it appears to me, that, consistently with all the authorities, that would not be sufficient to vitiate the policy. She had set out on the voyage insured; she had been unavoidably detained in Leith, still in the prosecution of her voyage, until she set out in April, when she still had the intention of prosecuting the voyage. She obtained a fresh license, —it is called a renewed license, —and she set out, as this license shews, to go to Gottenburgh. Undoubtedly if she had arrived near Gottenburgh, and finding the risk too great, attempted to unship her cargo into boats to smuggle them into Gottenburgh, that would have varied the case; but before she arrived at that point where it was necessary to decide what

Page: 386 ↓

My Lords,—We heard at your Lordships' Bar that this was a case in which the party had been kept out of his money so long, that it was proper, if your Lordships should think that the interlocutor should be reversed, that your Lordships should give interest on the money. Looking at the circumstances of this case, I do not think it is a case in which the Court ought to exercise that power, which undoubtedly it possesses, of adding the interest. I will take the liberty of handing to your Lordships in the course of this day, or to-morrow morning, the minutes of the judgment which I will move your Lordships to adopt in this case: the principle of it undoubtedly will be to reverse the judgment in the Court of Session, affirming by that the decision of the Judge-Admiral.Appellant's Authority .— Planch v. Fletcher , 1. Douglas, 251. Respondents' Authorities .—1. Park, 266. and Cases there; Marshall, 184. and 326.; 1. Bligh's Reports, 87.Solicitors: J. Richardson— J. Campbell, —Solicitors.

(Ap. Ca. No. 62.)