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![handle is hein.slavery/ssactsengr0678 and id is 1 raw text is: TENNANT V. HENDERSON [1813]
of insurance stipulated between the parties, indicating that such an eventual aug-
mentation of risk was in contemplation: finds it nevertheless proved, that the
enlarged construction of the privilege contended for by the Chargers, was adopted
by a great number of the dealers and underwriters in the African trade, but not
uniformly in point of extent of such construction, and not universally in any extent
even at Liver-[330]-pool :. and, amidst this diversity of sentiments, being, on the
whole, of opinion, that in applying for insurance at such an out-port as that of Leith,
it was the duty of the assured not to rely on a conventional meaning so adverse
,to the natural meaning, and attended with so much difficulty, while not established
with absolute universality among all versant in the trade, but to disclose the retard-
ment and increase of risk that might be expected from the privilege stipulated;
suspends the letters simpliciter, and decerns; but believing the Chargers, individually,
may have proceeded bon fide, though on somewhat too great confidence in their
own practice, finds no expences due, and decerns.
The Lord Ordinary, upon representation, adhered to his interlocutors, and gave
the parties the following note of the ground of his decision :-
I certainly proceeded, in pronouncing the interlocutor, on the opinion, that
the long stay of the Imperial, for so many months on the coast, was not at all
accounted for, but from her subserviency to the George; and if the Chargers
reclaim, this seems to me essential to be obviated.
The assured reclaimed to the second division of the Court, but without effect,
and then appealed.
The reasons on which the underwriters rested their case in both appeals, as well
in the former, in which they were Appellants, as in the latter, in which they were
Respondents, were these :-
1st, That the Imperial had been employed as a floating warehouse, or tender,
to the George, a fact which had not been communicated to the un-[331]-derwriters,
though it materially varied the risk ; and the case of Hartley v. Buggen (Marshall
405. Park 313), where it had been determined that any unnecessary delay was
equivalent to a deviation ; and that of Lever v. Fletcher (Marshall 54. Park 237),
to the same effect, were' cited.
2d, The representation that £5000 had been done upon the ship at Liverpool, on
the day then mentioned, was groundless ; and that, in fact, only £1000 had been on
that day underwritten on her.
3d, It was represented that the Imperial did not traffic in slaves ; whereas she
did actually deal in slaves, without being regularly entered as a slaveship, so that the
voyage was illegal ; or, at least, the vessel, even by having forfeited pawns on board,
was liable to seizure and detention, and the policy was thereby void, upon the principle
which governed the decision in Rich v. Parker (Marshall 319. 7 T. R. 705), and
Farmer v. Legg (Marshall 386. 7 T. R. 186).
4th, The misrepresentation relative to the ship had a reference to the policies on
the cargo, and rendered them also void.
5th and 6th, The representations on which the policies of the 1st and 26th of
November, 1803, were effected, were known to the owners, at the time, to be false
in several particulars, as to the state of the vessel, the time of her expected arrival,
and the number of men on board, etc.; and the policies were therefore clearly void,
upon the principles laid down by Lord Mansfield, in Fillis v. Brutton (Park 182);
by Lord Kenyon, in Rich v. Parker (Marshall 320. 7 T. R. 705) ; and by Lord Ellen-
borough, in Edwards v. Portner (Cam. N. P. C. 530).
The only point which appeared to be much relied upon, however, was that of the
Imperial acting as [332] a tender to the George, and the consequent protracted stay
of the former on the coast. The answer of the assured to this was, that the George,
by contracting for a cargo for the Imperial, so long before the arrival of the latter,
had, in reality, co-operated with, and assisted her, and, on the whole, accelerated rather
than retarded the completion of her voyage. That this mutual co-operation was
common in the African trade, and that this was, or ought to have been, known to
the underwriters. (Carter v. Bohem. 3 Bur. 1905. Plauchs v. Fletcher. Doug. 238.)
The nature of the African trade consisting in barter sufficiently accounted for the
length of time occupied by the Imperial in her voyage, without referring her pro-
tracted stay to her subserviency to the George. (Freeland v. Glover, 7 East. 402.)
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