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sured from Jamaica with a return of premium for convoy, was holden to have pursued the proper course by sailing from St. Anne's bay in Jamaica, in order to join the convoy at Bluefields, another port in the same island, and the general place of rendezvous for vessels on the Jamaica station, although in so doing she departed out of the direct line of the voyage to this country (1). A vessel, even if insured, may deviate from the common track of the voyage, for the sake of joining the convoy, especially if by the terms of the policy a return of premium be allowed for sailing with convoy. (2)

The warranty that the vessel shall be protected by convoy is Keeping with sometimes expressed by the words that the vessel shall sail Convoy. with convoy; sometimes that the vessel shall depart with convoy; but the meaning of both expressions is the same, and both equally intend that the master shall not only commence his voyage at the usual place of rendezvous under the protection of the convoy, but shall continue during his course under the same protection, unless prevented from so doing by tempest or other unavoidable accident, in which case the undertaking will be complied with if the master does all that is in his power to keep the benefit of the convoy (3). The convoy act provides that the master of a vessel which shall sail or depart under the protection of convoy shall use his utmost endeavours to continue with it during the whole of the voyage, or such part of it as the convoy is directed to accompany and protect the vessel, and shall not wilfully separate or depart from it upon any pretence whatever without leave of the officer in command of the convoy (4). It seems that if a vessel be insured "to sail with convoy," and from the neglect of the master in not coming on board in time, she lose the convoy, or even her proper position in it, the underwriters are discharged (5). But the obligation to sail with convoy is complied with if the How far must proceed with vessel sail with the convoy appointed by government, although Convoy, and it does not proceed the whole length of the voyage: as where what is Convoy. the ship was bound to Saint Sebastian, and the convoying vessel

(1) Bond v. Nutt, Cowp. 601.
(2) Id. ibid. D'Aguilar v.

Tobin, 1 Holt, 185.

(3) Lilly v. Ewer, Dougl. 74.

Carth. 216. 3 Lev. 320.
(4) 43 Geo. 3. c. 57. s.2.
(5) Waltham v. Thompson, 1
Marsh. Ins. 376. Taylor v. Wood-

proceeded only as far as Bilboa (1); or, if separate portions of the convoying force are appointed for different parts of the voyage, the warranty to sail with convoy is complied with by sailing with the force assigned by government (2). So where a vessel, from Tortola to London, was warranted to sail with convoy for the voyage, a frigate was sent by the commander at Saint Kitt's to Tortola to bring up the ships from thence, with orders, if they got a certain distance to the northward, to go straight for England; and the fleet sailed from Tortola, but the vessel insured being a bad sailer fell behind, lost the convoy, and bore away for England, but was captured on her passage; the jury found that the ship had sailed with convoy, and the court held the verdict right (3). But still, as already observed, the ship must sail with the convoy assigned by government; and the accidental protection afforded by a ship of war proceeding on the same voyage, will not be considered equivalent to a sailing with convoy. And, therefore, where a merchant vessel, bound from Jamaica to London, encountered at Kingston the Glorieux ship of war, Captain Cadogan, who was on his way to join Admiral Graves at Bluefields, the admiral having been appointed by the commander in chief to rendezvous at that place to convoy the merchant ships to Great Britain, but before the vessel arrived at Bluefields, the admiral had sailed away; it was holden, that although she continued in the company of the Glorieux, which acted in every respect as convoy from the place of her departure, and in the further prosecuting of the voyage with the convoy at Port Antonio, yet she had complied with the undertaking to sail with convoy, Port Antonio not having been appointed as the place of rendezvous. And Lord Mansfield observed, that when ships come to the place of rendezvous they take sailing orders from the admiral, which are essential to convoy,, as by them they become acquainted with the signals, and for what places they are to steer, in case of dispersion by storm, or for any other just cause. But upon a second trial in respect of the same policy, by the insured against another underwriter, the Glorieux having been proved to

came up

(1) Deguino v. Bewicke, 2 Hen. Bla. 554.

(2) Id. ibid. Smith v. Readshaw, Park, 7 ed. 510. ch. 18 De Garey v. Glagget, id. 511. Man

ning v. Gist, 1 Marsh. Ins. 2 ed. 367. ch. 9. s. 5. Audley v. Duff, 2 Bos. & Pul. 111.

(3) Id. ibid.

form part of the convoy, the court held that the plaintiff was entitled to recover. (1)

The convoy act provides that if the master of a vessel which Penalties. is required not to sail or depart without convoy, shall, in violation of the act, sail or depart from any place whatever, except as therein provided, without convoy appointed for the purpose, or shall afterwards desert or wilfully separate or depart from the convoy, without leave obtained from the commanding officer, before the vessel has arrived at her place of destination, or so far on her voyage as the convoy is directed to accompany and protect the vessel, such master shall forfeit for every offence the sum of £1000; and if the whole, or any part of the cargo, consist of naval or military stores, he will be liable to forfeit £1500 but the penalty in either case is subject to mitigation, at the discretion of the court, to a sum not less than £50 (2). Where a ship was insured from London to Berbice, with an extensive liberty of touching and trading at all places, and the master put into Madeira and staid there after the convoy with which she sailed had proceeded on the voyage; this was considered not to be a wilful desertion of convoy within the meaning of the act, as the master did not know when the convoy sailed, and left Madeira in the contemplation that he should be able to overtake it (3). The act also declares, that if any such ship shall sail or depart without convoy, or shall afterwards desert or wilfully separate from it (4), in violation of the statute, every policy of insurance, or other contract of insurance, upon the vessel, or any goods on board, or upon any property, freight, or interest arising out of them, which shall be the property of the master, or of any person interested in the vessel or cargo, who shall have directed, or have been in any way privy to or instrumental in causing the departure without convoy, or the wilful separation from it, shall be null and void, to all intents and purposes, both at law and in equity;-any contract or agreement to the contrary notwithstanding;- and that nothing shall be recovered thereon by the insured for loss or damage, or for any premium of insurance; and if any party to such insurance, his executors, or administrators, any broker, agent, or other person, shall knowingly make or procure to be

(1) Hibbert v. Pigon, Park, 498.
(2) 43 Geo.3. c. 57.
s. 3.
(3) Williams v. Shee, 3 Campb.

469.

(4) Williams v. Shee, 3 Campb. 469. supra.

made, or transact any settlement upon such insurance, or allow in account, or agree to allow, any sum or sums of money upon a loss or peril relating to such insurance, he shall forfeit £200 (1). But the statute does not invalidate a policy of insurance on the ground that the vessel sailed without convoy, unless it appear that the party insured was privy to or instrumental in the sailing without convoy (2). The first section, which prohibits sailing without convoy, does not affect the policies of those who are not privy to the sailing without convoy; and it is not sufficient to shew that the vessel sailed without convoy with the privity or through the instrumentality of an agent, without shewing that the agent was invested with authority from his principal for the express purpose (3). From a comparison, however, of the various clauses of the act, there appears to be this difference between' a sailing without convoy and a sailing without license, that if a ship sails without convoy, but the insured is ignorant of that circumstance, he is protected; but if he knows of her sailing without convoy, not knowing whether she has a license or not, he is not secure, unless a license for the voyage has, in fact, been obtained (4). A person, therefore, who ships goods on board a vessel which is to sail without convoy, does it at the risk of her having a sufficient license for the voyage, although he intended that the vessel should be licensed, and had no concern in the management of the ship, or the obtaining of the necessary documents (5). But the insurance is not vitiated by a misdescription in the license of the force of the vessel (6). And the clause vacating contracts when the vessel sails without convoy extends to contracts of insurance only; and it has been determined, that the charterer of a vessel cannot plead to an action brought against him by the owner on the charter party, for not providing a cargo at the foreign port, that the ship sailed on the voyage without convoy, and that the plaintiff was privy to and knew the same, without showing that it was in the contemplation of the parties to violate the act. For although a contract may be illegal which is entered into with an

(1) 43 Geo. 3. c. 57. s. 4.

(2) Cohen v. Hinckley, 1 Taunt. 249. Hinckley v. Walton, 3 Taunt. 131. See Edwards v. Footner,

1 Campb. 532.

(3) Carstairs v. Allnutt, 3 Campb. 497.

(4) Hinckley v. Walton, 3

Taunt. 136. Wainhome v. Cowie, 4 Taunt. 178. Wake v. Atty, 4 Taunt. 493. Darby v. Newtor, 6 Taunt, 544.

(5) Wainhome v. Cowie, 4 Taunt. 178.

(6) Edwards v. Footner, 1 Campb. 532.

understanding that the provisions of an act of parliament are to be violated by carrying it into execution, yet the charterparty in the present case could not be avoided by the act of the captain in sailing without convoy, where such conduct on his part formed no part of the agreement between the contracting parties. (1)

One moiety of all pecuniary penalties and forfeitures imposed by the 43 Geo. 3., so far as they relate to vessels sailing without convoy, or wilfully separating from it, or to insurances, belongs, if sued for within the space of one year from the time of their being incurred, to his majesty; and the other moiety, with full costs of suit, to the persons informing or suing; and may be sued for in any of the courts of record at Westminster, whether the offences were committed in England, or at sea, or in parts beyond the seas; and in the case of vessels sailing from any port in Scotland, in the court of exchequer at Edinburgh, for any offences so committed; and in the case of vessels sailing from any port in Ireland, in the courts of record at Dublin; and in default of prosecution within the time so limited, no such penalty or forfeiture shall be afterwards recoverable, except in the name of the attorney-general in England or Ireland, or the king's advocate in Scotland, by information in the respective courts; and in this case, the whole penalty will belong to his majesty (2). The attorney-general and king's advocate have power to stay proceedings on a proper application, and when there was no fraudulent design, on such terms as they think proper: actions are limited to three months, the venue is local, the general issue may be pleaded, and the defendants are entitled to treble costs on a nonsuit, discontinuance, or verdict in their favour. (3)

The statute 43 Geo. 3. c. 160.directs, that if the captain of a merchant ship under convoy shall wilfully disobey signals or instructions, or any other lawful commands of the commander of the convoy, or shall desert the convoy without notice given and leave obtained for that purpose, he shall be liable to be articled against in the high court of admiralty, at the suit of the king in his office of admiralty, for disobedience to the order of the convoy;

(1) Wilson v. Foderingham, Now exp.

1 M. & S. 468.

(2) 43 Geo. 3. c. 57. s. 12.

(3) 43 Geo. 3. c. 57. s. 14. (A war act only).

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