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![handle is hein.slavery/ssactsengr1040 and id is 1 raw text is: GREGSON V. GILBERT
GREGSON v. GILBERT (a). Thursday, 22d May, 1783. Where the captain of a slave-
ship mistook Hispaniola for Jamaica, whereby the voyage being retarded, and
the water falling short, several of the slaves died for want of water, and others
were thrown overboard, it was held that these facts -did not support a statement
in the declaration, that by the perils of the seas, and contrary winds and currents,
the ship was retarded in her voyage, and by reason thereof so much of the water
on board was spent, that some of the negroes died for want of sustenance, and
others were thrown overboard for the preservation of the rest.
This was an action on a policy of insurance, to recover the value of certain slaves
thrown overboard for want of water. The declaration stated, that by the perils of
the seas, and contrary currents and other misfortunes, the ship was rendered foul and
leaky, and was retarded in her voyage; and, by reason thereof, so much of the water
on board the said ship, for her said voyage, was spent on board the said ship: that
before her arrival at Jamaica, to wit, on, &c. a sufficient quantity of water did not
remain on board the said ship for preserving the lives of the master and mariners
belonging to the said ship, and of the negro slaves on board, for the residue of the
said voyage; by reason whereof, during the said voyage, and before the arrival of
the said ship at Jamaica-to wit, on, &c. and on divers days between that day and
the arrival of the said ship at Jamaica-sixty negroes died for want of water for
sustenance; and forty others, for want of water for sustenance, and through thirst
and frenzy thereby occasioned, threw themselves into the sea and were drowned; and
the master and mariners, for the preservation of their own lives, and the lives of the
rest of the negroes, which for want of water they could not otherwise preserve, were
obliged to throw overboard 150 other negroes. The facts, at the trial, appeared to be,
that the ship on board of which the negroes who were the subject of this policy were,
on her voyage from the coast of Guinea to Jamaica, by mistake got to leeward of that
island, by mistaking it for Hispaniola, which induced the captain to bear away to lee-
ward of it, and brought the vessel to one day's water before the mistake was dis-
covered, when they were a month's voyage from the island, against winds and currents,
in consequence of which the negroes were thrown [233] overboard. A verdict having
been found for the plaintiff, a rule for a new trial was obtained on the grounds that
a sufficient necessity did not exist for throwing the negroes overboard, and also that
the loss was not within the terms of the policy.
Davenport, Pigott, and Heywood, in. support of the rule.-There appeared in
evidence no sufficient necessity to justify the captain and crew in throwing the negroes
overboard. The last necessity only could authorize such a measure; and it appears,
that at the time when the first slaves were thrown overboard, there were three butts
of good water, and two and a half of sour water, on board. At this time, therefore,
there was only an apprehended necessity, which was not sufficient. Soon afterwards
the rains came on, which furnished water for eleven days, notwithstanding which
more of the negroes were thrown overboard. At all events the loss arose not from
the perils of the seas, but from the negligence or ignorance of the captain, for which
the owners, and not the insurers, -are liable. The ship sailed from Africa without
sufficient water, for the casks were found to be less than was supposed. She passed
Tobago without touching, thoigh she might have made that and other islands. The
declaration states, that by perils of the seas, and contrary currents and other mis-
fortunes, the ship was rendered foul and leaky, and was retarded in her voyage; but
no evidence was given that the perils of the seas reduced them to this necessity. The
truth was, that finding they should have a bad market for their slaves, they took
these means of transferring the loss from the owners to the underwriters. Many
instances have occurred of slaves dying for want of provisions, but no attempt was
ever made to bring such a loss within the policy. There is no instance in which the
mortality of slaves falls upon the underwriters, except in the cases of perils of the
seas and of enemies.
Lee, S.-G., and Chambre, contra. -It has been decided, whether wisely or
unwisely is not now the question, that a portion of our fellow-creatures may become
that the question is quo animo the rent was received, and what the real intention of
both parties was.
(a) S. C., but without the arguments of counsel. Park Ins. 82, 6th ed.
3 DOUGL233.
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