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Scottish Court of Session Decisions >>
Yelton and others v Smith and others. [1801] Mor 11962 (19 November 1801)
URL: http://www.bailii.org/scot/cases/ScotCS/1801/Mor2811962-055.html Cite as:
[1801] Mor 11962
Recapture by a non commissioned ship, vests an insurable interest.
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In the month of June 1797, the ship Diana, when on a voyage from the Forth to the Baltic, (without any letters of marque), recaptured the Lady Bruce, of Newcastle, which had been taken by a French privateer. Immediately on receiving intelligence of this event, the owners of the Diana insured L. 400 on the supposed salvage; and soon after, they were informed, that the Lady Bruce had been again captured by a Dutch schooner, upon the 18th of June.
An action was brought before the Judge-Admiral, at the instance of the owners, against the underwriters, for the sums insured; and after some procedure, the Admiral found the insurance to be good, and the underwriters to be liable.
This decision was brought before the Court by suspension; and the underwriters
Pleaded; The right of making war is exclusively inherent in the sovereign, and cannot be exercised by the subject, without some commission of warfare; Vattelle, b. 3. c. 15. The Diana had not been furnished with letters of marque, and therefore had no title to make captures; 33d Geo III. c. 66. The owners of the Diana, accordingly, had never any legal interest in the ship which they recaptured; and any assurance effected upon such interest, is of the nature of a wager-policy, and liable to be cancelled, by 19th Geo. II. c. 37.
Answered; 1st, Letters of marque are not necessary to entitle a vessel to make a recapture in time of war. The right of making recaptures is, by the express words of the statute, extended to all vessels “under his Majesty's protection and obedience.” Salvage arises, at common law, upon the recapture of a vessel; and being a real claim upon the part of the owners, is likewise an insurable interest. 2dly, The underwriters, in this case, were fully informed of the nature of the risk they were requested to insure, and received an equivalent premium.
The Lord Ordinary, 12th November 1800, “having considered the mutual memorials for the parties in this cause, in respect the ship Diana, of Kincardine, was not possessed of letters of marque at the time of retaking the Lady Bruce, of Newcastle, finds, That the owners of the ship Diana had no claim of salvage under the 33d of his present Majesty; and, therefore, suspends the letters simpliciter.”
But the cause having been brought before the Court, the Lords altered the interlocutor of the Lord Ordinary, and returned to the judgment of the Court of Admiralty.
Observed from the Bench; As the Diana was not furnished with a letter of marque, the recapture made by her might not have been effectual in a competition with the King or his officers; but the insurers are not entitled to state any such plea. There was still a claim of salvage arising at common law from the recapture, which, as circumstances then stood, was an insurable interest; and therefore the insurance ought to be made effectual. Robinson's Admiralty Cases, vol. 2. p. 280.
Lord Ordinary, Armadale.Act. Turnbull.Agent, Ad. Rolland, W. S.Alt. Lord Advocate Hope, Reddie.Agent, John Peat.Clerk, Pingle.
Fac. Col. No 3. p. 7.
