No. 1. Goss v. Withers.

censeantur, ubi per horas viginti quatuor in potestate hostium fuerint."

Secondly. It has been urged "that the insured can in no case abandon." On the contrary, all provincial laws allow the power of abandoning in some cases.1

This case falls within the reason of the cases that have been already cited; and the inconveniences that have been suggested are altogether imaginary.

Lord MANSFIELD observed, in general, that a large field of argument had been entered into, and that it would be necessary to consider the law of nations, our own laws and acts of Parliament, and also the law and custom of merchants (which make a part of our laws). Cur. advis.

On Thursday, 23d of November, 1758, his Lordship delivered the resolution of the Court, after having first stated the case and questions very particularly.

Lord MANSfield. It is not necessary to confine what shall be said to the two distinct questions that are stated.

The general question is, Whether the plaintiffs were, on the 18th of January, 1757, entitled to recover against the insurers as upon a total loss, under an offer "to abandon the ship and cargo to the insurers, for them to make what advantage of salvage they could." (For an offer "to abandon" was then made, and nothing has happened since that time to alter the case.)

There is one point which, we are all of opinion, is immaterial as between the insurers and the insured; viz., "Whether by this capture the property was or was not transferred to the enemy by the law of nations." That question can happen but in two cases; namely, (1st) Between the owner and a neutral person who has bought the capture from the enemy; (2d) Between the owner and recaptor.

If the ship taken by an enemy escapes from the enemy or is retaken, or if the owner redeems (ransoms) the capture, his property is thereby revested; which property in the ship taken was, by the law of nations, obtained by the captor.

The general proposition of writers upon this subject is, that quæ ab hostibus capiuntur, statim capientium fiunt, which is to

1 Lord MANSFIELD. It goes so far back as the Rhodian law and the laws of Oleron.

No. 1. Goss v. Withers.

be understood "when the battle is over." Indeed nothing can be said to be taken till the battle is over; and the battle is not over till all immediate pursuit has ceased and all hope of recovery is gone. This is the definition of a capture, referred to by our PrizeAct, 29 G. II. c. 34, of a ship taken by the enemy. And accordingly Voet, in his Commentary upon the Pandects, lib. 49, tit. 15, vol. 2, 1155, and many authors he refers to, maintain with great strength, per solam occupationem dominium præda hostibus acquiri.

One argument used to prove it is: "That the instant the captor has got possession, no friend, no fellow-soldier, or ally, can take it from him; because it would be a violation of his property."

But other writers and states have drawn other lines by arbitrary rules, and partly from policy to prevent too easy dispositions to neutrals, and partly from equity to extend the jus postliminii in favour of the owner. No wonder there is so great incertainty and variety of notions amongst them1 about fixing a positive boundary by the mere force of reason where the subject-matter is arbitrary, and not the object of reason alone.2

Some have said from the Roman law (which was introduced in favour of the liberty and condition of a Roman citizen taken captive)," that the prize must be brought infra præsidia." But "what custody at sea should be equal to præsidia at land," is a new fund of dispute, and leaves the matter just where it was.

The writers whom Grotius follows, and many more who follow him, and some 3 nations, have made twenty-four hours' quiet possession by the enemy the criterion. But this, Bynkershoek and other writers whom he follows and several nations absolutely deny. Some have said that the ship must be carried into the enemy's port, condemned there, sail out again, and arrive in a friend's port. All these circumstances are very arbitrary, and therefore this is generally exploded.

I have taken the trouble to inform myself of the practice of the Court of Admiralty in England before any act of Parliament com

1 All the opinions agreed with respect to the capture of ships that the property did not vest till the ship taken was brought intra præsidia, as it seems on the authority cited in 10 Mod. 79, 80. But if there were others who held the length of time material, yet there was no third opinion; but the variety of opinions only were either what should be called præsidium, or what

should be the particular time sufficient to vest the property.

2 Possession is sufficient against all persons, except him who hath right; and in this case no person hath a right, for the original owner, being an enemy, is not to be considered as having any right.

8 Vide the Ordinances of Louis XIV. 4 Quæst. Jur. Publ. L. 1, c. 4

No. 1. Goss v. Withers.

manded restitution or fixed the rate of salvage, and I have talked with Sir George Lee, who has examined the books of the Court of Admiralty, and informs me that they held the property not changed so as to bar the owner in favour of the vendee or recaptor till there had been a sentence of condemnation; and that in the reign of King Charles II. Sir Richard Floyd (father of the late Sir Nathaniel) gave a solemn judgment upon the point, and decreed restitution of a ship retaken by a privateer after she had been fourteen weeks in the enemy's possession, because she had not been condemned. Another case upon the same principle against a vendee is cited at the end of Assievedo v. Cambridge, in 1695 (Lucas, 79), after a long possession, two sales, and several voyages.1

But whatever rule ought to be followed in favour of the owner against a recaptor or vendee, it can no way affect the case of an insurance between the insurer and insured. (Upon an action against the hundred for a robbery a question might as well be started, "Whether the property of the goods as against the owner was changed by the sale.")

The ship is lost by the capture, though she be never condemned at all, nor carried into any port or fleet of the enemy, and the insurer must pay the value. If after condemnation the owner recovers or retakes her, the insurer can be in no other condition than if she had been recovered or retaken before condemnation. The reason is plain from the nature of the contract. The insurer runs the risk

of the insured and undertakes to indemnify; he must therefore bear the loss actually sustained, and can be liable to no more. So that if after condemnation the owner recovers the ship in her complete condition, but has paid salvage, or been at any expense in getting her back, the insurer must bear the loss so actually sustained.

1 In that case it is expressly stated (p. 77) that before the ship was carried intra præsidia it was retaken by an Eng lish man-of-war, and it appears that the case was argued entirely on that ground for the defendant, and particularly in page 79 (the page here referred to), as may appear from the following extracts from that page, viz.: "The law is clear that not the length of time, but the bringing intra præsidia into a place of safety is that which divests the property;" and for that the case of and Sands, in the late war, was cited. The words of the judg

ment in the like cases are very remarkable; in præsenti pertinere is part of the sentence, so that the sentence does not give a new right, but confirms an old one. Lud. Molin, 118. Bello res per vim usurpantur quando ad locum totum, &c.

Petrinus Bellus, part 3, no. 11. Fieri potest that property may be altered by possession of a shorter time, et forsan not altered diuturniore possessione,

Consulat. del Mare, cap. 287, lays down the security of the place into which deducuntur capta as that which causes the alteration of property.

No. 1. Goss v. Withers.

A capture by a pirate (and in Spain, Venice, and England, the goods go to the captor of the pirate against the owner, as there can be no condemnation to entitle the pirate), or a capture under a commission where there is no war, do not change the property; yet, as between the insurer and insured, they are just upon the same foot as captures by the enemy.

This point never would have been started in policies upon real interest, because it never could have varied the case (and in this cause the question could not have been material, if the parties had not suffered the cargo to perish while they squabbled who should take it). But wager-policies gave rise to it; it was necessary to set up a total loss as between third persons for the purpose of their wager, though in fact the ship was safe, and restored to the

owner.

In the case of Assievedo v. Cambridge, the man-of-war which retook the ship brought her into the port of London, and restored her to the owner upon reasonable redemption (that appears from the special verdict, though not stated in Lucas). And then the owner, not abandoning the ship, could only have come upon the insurers for the redemption, and no question could have arisen upon the change of property. But the policy being interest or no interest, without benefit of salvage, the question arose upon the terms and meaning of the wager. That case was not determined.

In the case of Spencer v. Franco, before Lord Hardwicke, at Guildhall, 1735, the South Sea ship Prince Frederick had returned safe to the port of London with her cargo: the wagerers contended "she was totally lost at La Vera Cruz," from this notion of a change of property; but failed.

De Paiba v. Ludlow was also a wager-policy; and the property could not be changed, because there was then no war, nor even a declaration of war; but the court held " that as the ship was once taken in fact, the event had happened, though she was afterwards recovered." So in the case of Pond v. King, which was also a wager-policy.

But in the case of Pole v. Fitzgerald the majority of the judges. and the House of Lords (in 1754, by the name of Fitzgerald v. Pole) held "that though the ship might be deemed for a time as lost; yet, as she was afterwards recovered, the event of a total loss. had not finally happened according to the construction of the wager."

No. 1.-Goss v. Withers.

These are all the cases where this question has been debated. But this is a policy upon real interest.

The single question therefore upon which this case turns is, "Whether the insured had, under all the circumstances, upon the 18th of January, 1757, an election to abandon."

The loss and disability was in its nature total, at the time it happened. During eight days the plaintiff was certainly entitled to be paid by the insurer as for a total loss; and in the case of a recapture the insurer would have stood in his place. The subsequent recapture is, at best, a saving only of a small part; half the value must be paid for salvage. The disability to the voyage still continued. The master and mariners were prisoners. The charterparty was dissolved. The freight (except in proportion to the goods saved) was lost. The ship was necessarily brought into an English port. could be saved might not be worth the expense attending it: (which is proved by the plaintiff's offer to abandon).

What

The subsequent title to restitution arising from the recapture, at a great expense, of the ship disabled to pursue her voyage, cannot take away a right vested in the insured at the time of the capture. But because he cannot recover more than he has suffered, he must abandon what may be saved.

The better opinion of the books: "Sufficit semel extitisse conditionem, ad beneficium assecurati, de amissione navis; etiam quod postea sequeretur recuperatio; nam per talem recuperationem non poterit præjudicari assecurato." I cannot find a single book, ancient or modern, which does not say "that in case of the ship being taken, the insured may demand as for a total loss, and abandon." And what proves the proposition most strongly is, that, by the general law, he may abandon in the case merely of an arrest, or an embargo, by a prince not an enemy. Positive regulations in different countries have fixed a precise time before the insured should be at liberty to abandon in that case. The fixing a precise time proves the general principle.

Every argument holds stronger in the case of the other policy with regard to the goods. The cargo was in its nature perishable, destined from Newfoundland to Spain or Portugal, and the voyage as absolutely defeated as if the ship had been wrecked, and a third or fourth of the goods saved.

No capture by the enemy, though condemned, can be so total a