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![handle is hein.slavery/ssactsengr0549 and id is 1 raw text is: 414 ROHL V. PARR 1 ESP. 445.
Lord Kenyon, in summing up, told the jury, that as to this part of the case, he
was of opinion, that nothing was imputable to the defendant; that though the fact
of the arrest was a suspicious one, yet where a party arrests his debtor, who is a
trader, under a misconception, from a suspicion which is afterwards done away,
he might safely withhold the account of that fact. His Lordship afterwards added,
that perhaps he was bound to withhold it, as the imputation might be injurious to
his credit.
Some other circumstances having appeared in evidence, which brought the fact
of knowledge of Harris's circumstances being embarrassed at the time of the
character given of his solvency, more home to the plaintiff, the jury found a verdict
for the plaintiff.
Gibbs and Marryatt for the plaintiff.
Erskine and Garrow for the defendant.*
[445] Saturday, Feb. 27th.
ROHL V. PARR.
(Where a ship's bottom has, during the voyage insured, been taken by the worm,
in consequence of which she is incapable of proceeding on her voyage, and is
condemned, this is not a loss by perils of the sea, within the meaning of the
policy. In the case of an insurance upon slaves, free from an average loss
under five per cent. for loss from insurrection, and a loss takes place from in-
surrection, the loss must be calculated in its proportion to the cargo, when it
happened, and not when the whole cargo was sold.)
[Considered, Pandorf v. Hamilton, 1886, 17 Q. B. D. 676. Referred to, Bhitish
and Foreign Marie Insurance Co. v. Gaunt, [1921] 1 A. C. 41.]
Case on a policy of insurance on the ship Zutmbee, from St. Bartholouiew to
the river Gombroon, on the coast of Africa, and from thence to the West Indies,
during her stay. There was a memorandum, to be free from average, under
ten per cent. for loss in boats, and from five per cent. for loss from insurrection.
The ship sailed from St. Bartholomew on the 1st of September 1792, arrived safe
on the coast of Africa. and began to trade. In the month of September following,
there was an insurrection of the slaves on board the ship. They had then forty-nine
on board, and seven were killed, and one died by accident, in consequence of a fall.
After this, being about to return, it was found that the worni had taken her
bottom, and had destroyed it so effectually, that the ship could barely get to Cape
Coast, where she was condenmned as irreparable.
Upon these facts, two points arose in the case ; 1st, Whether this was a total
loss arising from the perils of the sea ; or, 2dly, A partial loss above five per cent.
for which the plaintiff was entitled to recover.
Gibbs, for the plaintiff, contended, that the destruction of the ship's bottom from
worms, having arisen in the course of her voyage, was a peril of the sea. If the ship
had struck against a rock under water, and her bottom been destroyed, that would
have been clearly within the policy ; there it proceeded from an inanimate substance
striking against the ship's bottom. The present case was that of an animated
substance moving to destroy it.
Erskine, contra, insisted that it could not come under that description of loss, as
not arising from any peril of the sea.
[446] Lord Kenyon said, that it appeared to him a question of fact, rather than
of law, such as the jury were competent to decide on, from the opinion on the subject
adopted by the underwriters and merchants.
The jury (which was a special one) found, that this was not a loss within the term
of perils of the sea in policies of insurance, and of course that the plaintiff could not
recover for a total loss.
It then became a question, as to the partial loss from the insurrection, which it
was necessary should exceed five per cent. in order to give the plaintiff a title to re-
cover. If the calculation was taken at the time when the loss happened by the
insurrection, when the slaves were killed, then above five per cent. was the loss;
* Vide Cowan v. Simpson, ante, 290; Paisley v. Freeman, 3 Terni Rep, 51;
Scott v. Lara, Peake's Cases, N. P. 226.](ViewImageLocal?handle=hein.slavery/ssactsengr0549&div=1&collection=&method=preview&ext=.png&size=3)