Haven v. Holland

(after summing up the facts to the jury). It does not appear to me, that there is any serious difficulty in the law applicable to this case. It is clear from the authorities, that a vessel insured as a letter of marque, has no right to cruise at large for prizes; but she has, in my opinion, a right to chase and capture hostile vessels, which are met with and are in sight in the course of the voyage.2 Here, however, the vessel was not insured as a letter of marque, although it was well known to the underwriters, at the time of the insurance, that she possessed such a commission. And the argument is, that knowledge of the fact, does not aid this defect of description in the policy. I do not profess to feel any doubt on this point. It appears to me, that it is wholly immaterial, whether the vessel be described in the policy *847as a letter of marque or not, provided the fact of her sailing under such a commission, be known to the underwriters. The description of the fact, does not make the construction of the policy more broad, but it repels any de-fence founded upon the concealment of a fact, material to the risk. There are many cases, in which this doctrine is applied. Although this is my opinion, yet as the principal question in this case turns upon another point, I am disposed to reserve this point, and to direct the jury to find a verdict for the defendant, unless the capture was made in necessary self defence.

Whether a vessel be commissioned or not, she has a right to repel any attack of an enemy, and to protect and defend herself by all reasonable precautions, against a meditated hostile attack. If a vessel, supposed to be an enemy cruiser, be in sight, and apparently intend an attack upon a merchant vessel, the master of the latter is bound to exercise his best skill and judgment as to the time and mode of his defence, and if he act honestly and fairly, he will be justified, whatever may be the event He is not bound to endeavour to make his escape, in the first instance, and on failure of this, to meet the enemy; nor is he bound to lay by or fly until an attack is commenced upon him, and he has received injury, and then, and not before, to exert his right of self-defence. The law vests him with a large discretion for the benefit of all concerned. He is to consult the safety of the persons and property on, board, in the best manner he can. He may lay to, or "chase the enemy ship, if he deem that the most effectual means of securing his object. It may be his best course to begin the attack, and • to attempt to cripple the enemy, or to encourage his own crew by commencing a chase, or to intimidate the enemy by laying to, and shewing a determination to resist any attack.3 These are considerations, which are confided to his discretion, and he is to judge, under all circumstances, what is the most promising mode of defence. To deprive him of this right of choice, would be to subvert the great object of his appointment, and to sacrifice to ignorance and mistake, all the advantages of skill and management. The only question in cases of this nature is, whether what is done, is fairly attributable to a mere intention of self-defence, or to motives of another nature, such as the desire of profit. If the former, then the act is justifiable; if the latter, then it is a deviation. Apply these principles to the present case. If, when the. Volant wore round to attack the Criterion, it was for the purpose of self defence, to intimidate the enemy, and to repel a meditated attack, before the Volant should herself be disabled, then it is clear, that the act was not a deviation. But if this was wholly unnecessary, and was done by the master without any view to self-defence, and for the mere purpose of making a prize, then it was a deviation.

But it is contended, that if the capture was made solely in self-defence, still the master had no right to take possession of, and man out the prize, but was bound to proceed on his voyage without this delay. I am of a different opinion. If the capture was made in self-defence, the master had a right to take possession of his prize, and if without injuriously weakening his own crew, he could man the prize, he had a right so to do; and the delay for these purposes was not a deviation. He had a right to make the capture effectual, to prevent the enemy from re-commencing the attack, or giving information to other cruisers. The right of capture drew after it all the other incidents. It would be most mischievous to the interests of trade, to discourage a crew from making a gallant defence by the knowledge, that in no event could they reap a reward from the victory. I know of no authority in the law, that compels me to such a doctrine, and I cannot perceive that it stands on any solid principle of justice or reason, or public convenience. •

Verdict for plaintiffs.

A motion was afterwards made for a new trial, upon the ground that there was error in the law as laid down by the court; but the motion was overruled, and judgment passed for the plaintiff.