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![handle is hein.slavery/ssactsengr1044 and id is 1 raw text is: ROBERTSON V. EWER
evidence. It was impossible to bring evidence to prove the want of each qualification
negatively. If the information be specific, a general deposition, that he is not qualified,
is sufficient to put the defendant upon proving that he was.
Per Curiam. The first objection is good; the witness ought to have been re-sworn
in the defendant's presence. As to the other point-there is no case in which it has
been directly decided that the evidence should negative every particular qualification.
It cannot be so from the nature of the case (c).
Conviction quashed.
ROBERTSON against EWER. Saturday, Feb. 4th, 1786. Seamen's wages and pro-
visions during an embargo (a)' are not covered by an insurance on the body
of a ship.
[Applied, Field SS. Company v. Burr [1899], 1 Q. B. 589.]
This was an action tried before Buller, J. at the sittings after last Michaelmas term,
at Guildhall, on a policy of insurance on the ship Dumfries from London to the
coast of Africa, during her stay and trade there, and at and from thence to her port
or ports of discharge in the British West India Islands.
[128] On a motion to set aside the nonsuit entered in this cause, and to grant a
new trial, the following facts appeared:
That the ship sailed on her voyage to the coast of Africa, at which place she took
in a cargo of slaves, and proceeded from thence to the island of Barbadoes, where she
arrived on the 18th of December, 1781. That an embargo had previously been laid
on all shipping by Lord Hood the commander in c'hief upon that station. That,
notwithstanding this, the captain of the Dumfries attempted to sail on the 21st of
December 1781, but was prevented: on this, application was made by him for per-
mission to sail, which being refused, a few days afterwards he sailed without leave;
and thereupon Lord Hood dispatched the Salamander sloop of war in chase of the
vessel, which brought her back after a trifling engagement (the damage being less
than 3 per cent.). Upon her return, Lord Hood, in consequence of this breach of
embargo, ordered all the men to be taken out and dispersed on board His Majesty's
ships of war. That the embargo continued till the 7th of January 1782. That on
the 22d of the same month, the small-pox broke out amongst the slaves, who were all
obliged to be put on shore. In consequence of which, and for want of mariners to
navigate the vessel, she was detained at Barbadoes above two months after the
embargo was taken off. That the ship then sailed to Jamaica, which was her last
port of discharge.
This action was brought to recover the amount of wages and provisions, in conse-
quence of her detention under the embargo at Barbadoes. .
On the trial, Mr. Justice Buller was of opinion that this policy being upon the
body of the ship, and the average loss thereon being less than 3 per cent. the plaintiff
could not recover.
Lee, Cowper, and Wood, in support of the rule, made two points.
1st. That this loss was insured against under that part of the policy, which provides
for all arrests, restraints, and detainments of all Kings, princes, and people of what
nation soever. And the detainment, in this instance, being by the King's ships, makes
no difference; the damage is exactly the same to the owner, which is the event insured
against. Suppose the embargo has been laid on for a greater length of time, in con-
sequence of which the ship had become worm-eaten, the assured might [129] have
abandoned, and come upon the underwriter for the loss. In the case of Goss and
Another against Withers (a)2, Lord Mansfield said, that by the general law, the insured
may abandon in the case merely of an arrest on an embargo by a prince, not an enemy.
If then the plaintiff had a right to abandon, and recover the whole value, if he choose
to continue his voyage, he certainly might recover an average loss for so much of the
damage as was actually sustained.
2dly. The plaintiff is entitled to recover upon this policy, as upon a loss sustained
in consequence of the barratry of the master. There can be no doubt but that his
(c) Vid. post, 145.
(a)' Vid. Brough v. Whitmore, post, 4 vol. 206.
(a)2 2 Burr. 696.
1011
1 T. R. 128.](ViewImageLocal?handle=hein.slavery/ssactsengr1044&div=1&collection=&method=preview&ext=.png&size=3)