S
UR Policy of Infurance. The Captain's Proteft in Jamaica under the Seal of a Notary Publick there, given in Evidence to prove the Capture, and not oppofed.Inftructions from the Plaintiffs (Owners of the Veffel infured) to the Captain of the Time of his failing, fworn by the Captain to be the only Inftructions he had, were given in Evidence by the Plaintiffs, to prove they had given the Captain no Orders to buy the Veffel on their accountant in cafe of a capture and re-capture, flightly oppofed by Defendants Council, and given up without debate.
The Defendant in this cafe underwrote an open Policy on the Veffel from Philadelphia to Jamaica, fhe was taken by the Enemy and ret ken, and carried into Jamaica, where by Agreement between the Captain and Re-captors, without going into the Court of Admiralty, the was fold at public Sale for about one fourth of the Sum infured, and brought by the Captain for the former Owners, who afterwards acquiefced in the purchafe, and now fued for the whole Sum infured as a total lofs. The Sale was proved to be fair, and the Plaintiff's Council inlifted that from the moment of the Capture, there was a total lofs, and cited divers cafes to fhew, that if there be a Capture, though it be not fuch a one as by the Law of Nations would change the Property, yet it would be fufficient to those Underwriters with a total Lofs, and the Affure may abandon.–Beaws Lex Mer. 268. Convgham 225. 259. 300.340.
1764.
On the Part of the Defendant, it was infifted that he ought to pay 20 more on this Policy then the actual lofs futained by the Payment of Salvage and other Charges. That the Captain have fet up the Veffel to fale without any Orders of the Court of Admiralty, and purchafed her himfelf in behalf of the Owners, for about one fourth of the Sum infured, and this being acquiefced in by the Plaintiffs, there was no abandonment, and therefore but an average lofs.
THE COURT gave in Favour Defendant ; and the Jury accordingly gave the Plaintiffs a Verdict for fo much only as they judged a compenfation for Salvage, charges, and Lofs of Time, an account of the capture.