Marine Insurance in the late 18th Century
On 18th century marine insurance generally, see James Allan Park, 'A System of the Law of Marine Insurances', London: T. Whieldon, 1781.
In the 1780s and 1790s, it was still common to organise the insurance on a vessel and/or cargo by employing a broker who would negotiate directly with individual merchants, who would subscribe for a specified sum (say, £400) until the whole was insured.
For example, Camden, Calvert, King purchased at least some of their insurance on their Third Fleet ships through a broker named Robert Dallas of 1 Mincing Lane. (Cambden v Anderson, 29 July 1794, Morning Post & Fashionable World, 30 July 1794; Star, 1 August 1794; Times, 25 & 27 October 1794, p.4)
Dallas in turn insured the ships with a number of London-based merchants, several of whom were leading merchants and prominent figures in the insurance industry. These included:
• Walter Ewer, a former director of the London Assurance and from 1792 to 1795, a director of the East India Company (appointed because he was a friend of Henry Dundas). He had underwritten both ships to the value of £500. (C.H. Phillips, The East India Company, 1784-1834 , Manchester: Manchester University Press, 1961, p.62)
• John William Anderson was a former director of the Royal Exchange Assurance and the Russia Company. He had also underwritten both ships to the value of £500.
• One of the Cazalet family, almost certainly Peter Cazalet who had been a director of the London Assurance, also participated in underwriting the Active (at least). Peter Cazalet was a prominent London merchant. He had been a director of the Bank of England in 1792 and 1793, and in 1798 was a Deputy of the City of London. (Based on a number of sources involving the insurance cases for the 'Active' and the 'Albemarle')
There appear to have been around 40 different individuals involved in the insurance of these two ships. (Calvert and Co v The Underwriters, Times, 27 January 1796, p.3 & 16 April 1796, p.3) Based on other examples from the time, it was not unusual to see the signatures of some 20-30 individuals attached to an insurance policy, on which see below.
In 1796, the owner (and master) of the 'Marquis Cornwallis', Michael Hogan, purchased insurance for the ship through Messrs Hamilton & Touray, also of Mincing Lane, in London. (Michael Hogan Family Papers, Typed MS, Mitchell Library, MLMSS7359, LB-101)
Pro Forma Insurance Policies
From the middle of the 18th century, Lloyd’s was issuing printed pro forma insurance policies which were adapted as required. In 1786, they would have been using a pro form revised and confirmed at New Lloyd’s on 12 January 1779, which read as follows:
"In the name of god. Amen. [Names of principal insured] as well in own names, as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all, doth make assurance and cause and them, and every one of them to be injured, lost or not lost, at and from
[Brief description of voyage, such as ‘London to the Gold Coast of Africa’]
"Upon all kinds of goods and merchandizes, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture, of and in the good ship or vessel called the
[Name of ship]
"whereof is Master, under God, for this present voyage, [Name of captain] or whosoever else shall go for Master in the said ship, or by whatsoever other name or names the same ship, or the Master thereof, is or shall be named or called; beginning the adventure upon the said goods and merchandizes from the loading thereof aboard the said ship, upon the said ship, &c and so shall continue and endure, during her abode there, upon the said ship, &c. And further, until "the said ship, with all her ordnance, tackle, apparel, &c. and goods and merchandizes whatsoever shall be arrived at
"upon the said ship, &c. until she hath moor’d at anchor twenty-four hours in good safety; and upon the goods and merchandizes, until the same be there discharged and safely landed. And it shall be lawful for the said ship, &c. in this voyage, to proceed and sail to and touch and stay at ant ports or places whatsoever
"without any prejudice to this insurance. The said ship &c. goods and merchandizes &c. for so much as concerns the assureds, by agreement between the assureds and the assurers in this policy are and shall be valued at
"Touching the adventures and perils which we the assurers are contented to bear, and do take upon us in this voyage, they are of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter mart, surprizals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever; barratry of the Master and mariners, and of all other perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of the said goods and merchandizes, and ship &c. or any part thereof. And in case of any loss or misfortune, it shall be lawful to the assureds, their factors, servants and assigns, to sue, labour and travel for, in and about the defence, safeguard and recovery of the said goods and merchanizes and ship &c. or any part thereof, without prejudice to this insurance; to the charges whereof, we the assurers will contribute each one according to the rate and quantity of his sum herein assured. And it is agreed by us the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. And so we the assurers are contented and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assureds, their executors, administrators, and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for this assurance by the assured at and after the
"Rate of [Insurance rate, such as ‘Two guineas percent’]
"In witness whereof we the assurers have subscribed our names and sums assured in London.
"N.B. Corn, fish, salt, fruit, flour and seed are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides and skins are warranted free from average, under five pounds per cent. and all other goods, also the ship and freight are warranted free of average under three pounds per cent. unless general or the ship be stranded.
[There followed, in some of the contracts, a brief summary of what was covered, such as ‘Goods, slaves & merchandizes as interest shall appear’
"And the signatures and sums of the assurers, such as:
[‘£400 Jno Newton for A. French. Four hundred pounds. Rec’d 24 September 1785’] (Based on the policy for the 'Commerce', at TNA T70/1553)
We have no examples of an insurance policy for a convict voyage, but the following is an example of a contract on the 'Recovery', a Camden, Calvert & King ship, which carried convicts to West Africa in 1785. (TNA T70/1553) The list of insurers includes one of the Cazalet family:
Insuring Convict Voyages
Owners insured each leg of the voyage separately, and there was usually one policy for the outward voyage, from London to Botany Bay and the next major port (say, Canton or Bombay), and a second for the return. Ship and cargo would usually be insured together. It was possible for the owners in London to take out additional insurance on the vessel while the voyage was underway.
Active and Albemarle (1791)
We have fragmentary information about the policies on two ships, the Active and the Albemarle. It appears that there were two policies: (1) upon the ships and cargo from London to Botany Bay and Bombay, and possibly the return; and (2) upon the ships and cargo from Bombay to Europe.
Upon this transaction the plaintiffs had made with the defendants two policies of insurance: the one upon the ships and cargoes of cotton from Bombay to Europe, at four per cent. for £34,000 at one, per pound weight, upon which policy the present action was brought; and the other upon the cargoes and hulls of the vessels which sailed from Botany Bay to Bombay. (Cambden & Ors v Ewer, 18 June1794. Morning Post, 19 June 1794)
The policies on the ships on their voyages out and back appear to have been framed in the following terms:
"At and from London to any port or ports in New South Wales, and at and from thence to all ports and places in the East Indies, Persia, China, or elsewhere; and at and from thence till her (Active) safe arrival back to London, with liberty to touch at, stay, and trade at any port or ports wheresoever, and whatsoever on this side or on the other side of the Cape of Good Hope." (Cambden and Ors v Anderson, 6 February 1795, Times, 7 February 1795, p.3; Star, 13 March 1795)
The policy on the Albemarle, out and back, was dated 11 January 1791, to the value of £5,800. (Calvert and Co v The Underwriters, 26 January 1796, Times, 27 January 1796, p.3) There was another policy of insurance underwritten on 27th of April 1792. (Times, 25 October 1794, p.4) But it is unknown to what this related.
The policy for the cottons on the Albemarle was dated the 20th of December 1792. (Times, 25 October 1794, p.4) The cotton on the Active was insured for £20,000. (Cambden and Ors v Ewer, 18 June 1794, Times, 19 June 1794, p.3; Lloyds Evening Post, 18-20 June 1794) But elsewhere the insurance policy on the freight of the Active was said to be valued at £5000. (Cambden and Ors. v Anderson, 5 July 1794, 5 Term Reports 709) It is unknown how to rationalise these differing pieces of information.
Marquis Cornwallis (1796)
The Marquis Cornwallis was insured on the passage out, which included the voyage from Port Jackson to China or India. This was distinct from the insurance for the passage home and it had been arranged first. The policy was for £7,000 and it appears to have been organised through Hogan’s father-in-law, William Richardson and through William Lennox, the manager of Messrs David Scott & Company:
"In case of loss or accident outward bound, the premium on the seven thousand pounds insured by you is to be first deducted and paid to you after recovery from the underwriters on said policy, which is now in your hands, and in case of accident afterwards, the premium that may be paid by you on the four thousand pounds mentioned to be also deducted and paid to you in case of claim on the underwriters, and the balance of both policies to be paid by you to Captain William Richardson of Limehouse and William Lennox, Esquire, of Broad Street or either of them or order." (Michael Hogan Family Papers, Typed MS, Mitchell Library, MLMSS7359, LB-100)
There seems to have been a second policy for the outward voyage, also for £7,000, and organised through Messrs Hamilton & Touray of Mincing Lane, London.
"Being now on the eve of sailing for New South Wales in my ship the Marquis Cornwallis, which is insured outward bound only, I beg that you will in January or February next 1796 cause four thousand pounds (£4,000) to be insured on her block, the risk to commence on the day of her arrival at her loading port homeward in India or China and to end twenty-four hours after her safe arrival at Deptford or such place on the River Thames as the East India Company may order her finally to deliver her cargo.
"In case of loss or accident outward bound, the premium on the seven thousand pounds insured by you is to be first deducted and paid to you after recovery from the underwriters on said policy, which is now in your hands, and in case of accident afterwards, the premium that may be paid by you on the four thousand pounds mentioned to be also deducted and paid to you in case of claim on the underwriters, and the balance of both policies to be paid by you to Captain William Richardson of Limehouse and William Lennox, Esquire, of Broad Street or either of them or order.
"The ship is warranted to mount 16 guns and to be valued at £16,000 and, in case of sailing with convoy from India, China or St Helena, a clause of return of premium to be inserted and agreed on in the policy." (Hogan Papers, LB-101)
In May 1796, when Hogan abandoned plans to sail to China, he wrote to Messrs David Scott & Company in London, advising them of his route to Bengal and asking them to adjust the insurance:
"By this you will learn that I arrived here on the 11th February last and by the end of March was ready again for sea, too late a time to have any hopes of getting to China to save the present season, in consequence of which and at the recommendation of Governor Hunter, I determined to proceed to Bengal to get a cargo for the Company. My route shall be through St George Channel. Dampier’s Strait, Pitt’s Passage, and out through the Straits of Lomback, Bally or Allas to avoid going through the Java Seas, then proceed to the westward within the limits of the SE trade till such time as I haul up to make Ceylon, probably stop an hour at Madras, then proceed to Bengal.
"I mention these particulars that you may consult Messrs Richardson & Walker and Hamilton & Touray respecting my insurance outward, and as I leave these matters to your superior judgment at home, I wish to assure you that any alteration you make or any step you take for the better covering my property for the general good of the interested shall be considered by me as an act of my own, but permit me to recommend to your notice that I fear nothing under a heavy frigate. I mount 16 good guns with seventy six able fellows to stand by me and by God she shall never go while there is a cartridge of powder on board.
"I will hope to write you from Madras letters that must come to hand long ere this; should that fail, it would be proper to attend to the insurance." (Hogan Papers, LB-112)
Under insurance law at the time, the risks against the underwriter insured the ship, goods or merchandise must be stated and the words used tended to be comprehensive: ‘all perils of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter mart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever; barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment, or damage of the said goods and merchandises, and ship, or any part thereof’.
However, the ship and goods were only insured against external accidents. If goods were stolen by thieves amongst the ship’s company, then the underwriter was not liable. The principle was that the owner was liable to take care of goods and merchandise stolen from within the vessel, which was a matter of negligence and not accident.
Everything that happened to a ship in the course of her voyage by the immediate act of God, without the intervention of human agency, was a peril of the sea – the violence of wind or waves, thunder or lightning, being driven against rocks, or being stranded, or any other violence which human prudence could not foresee nor human strength resist.
Wear and tear were not insurable – there must be something fortuitous. Damage caused by a swell was covered; damage caused by the fall of a tide was not. Loss caused by a collision of two ships was a peril of the sea. Destruction of the ship’s bottom due to worms was not a peril of the sea. Damage caused to a cargo of tobacco by sea water was a loss by perils of the sea. Where a ship became leaky due to negligent loading by natives on the coast of Africa, and she was subsequently run ashore to prevent her sinking, the underwriters were held to be liable because the immediate cause was a peril of the sea, while the negligence of the master and mariners was remote. (based on Park, A System of the Law of Marine Insurances)
Takings at Sea
Insurers were deeply concerned about the prospect of a convict mutiny, and there seems to have been a reluctance to insure convict transports if they did not carry a military guard:
18 November 1786 – Edinburgh Advertiser:
"The embarkation for Botany Bay will not take place till the middle of January next, and we are assured seven transports have already engaged by government for that expedition.
"It was said yesterday upon ‘Change that the underwriters of this city have refused to insure any of the vessels going to Botany Bay." (Edinburgh Advertiser, 18 November 1786, p.1)
There is no evidence that the First Fleet ships were uninsured, and this may relate to the early months when there was some uncertainty whether the owners would have to provide additional crew for security purposes.
24 August 1789 – Welbank Sharp & Brown to the Navy Board (in relation to the tender for the Second Fleet):
"On looking at the Tender this Morning for carrying the Convicts to South Wales it appears uncertain if any Troops are to be sent to Guard them which at first we understood was to be the case.
"We will be much obliged to your Honours to inform us if it is determined that no Troops are to be sent, as in this case it will very much increase the Danger and consequently the Expence of the Voyage – indeed on consulting some of the Ship Owners this Morning they appear afraid to trust their Ships without a Guard of Soldiers in each, for the Underwriters without they had a Guard would make no Insurance on their Property." (TNA T1/671/232)
26 April 1792 – William Richards to King (in relation to the Boddington and Sugar Cane:
". . . The idea there mentioned [of] saving the expence of guards cannot be admitted. Can it be supposed that the underwriters will insure a ship valued at so much as the Indiamen are (£20,000 at least) without some cheque in case of the convicts rising? Have not instances already been seen of the convicts attempting it, even when a guard has been on board; much more when no guard. Nor do I suppose that government will permit the Captain to keep the convicts always below & ironed, that would only destroy them! One of these two circumstances it is very probable will happen if no guard are allowed." (TNA CO201/7/215)
Loss of or Damage to the Ship
Naval transports sailed ‘at the Risque of Government from the Enemy’, which meant that owners were compensated for loss or damage suffered as a result of hostile action. Ships were valued when they were surveyed, and owners were paid this sum, minus a deduction for wear and tear from the time she was taken up until the time she was lost. (David Syrett, Shipping and the American War, 1775-83, London: The Athlone Press, 1970, pp.82-83)
But this did not apply to convict ships, which were not generally lost or damaged through hostile action. The loss of a convict transport was treated no differently to the loss of any other vessel, unless it was destroyed or damaged as a result of an explicit order given by a naval agent (on which, see the case of the Friendship below).
It was not possible for the owners of the Friendship (1787) to make an insurance claim because the ship had been sunk at the direction of the naval agent. Lieutenant Shortland claimed that the ship was not able to proceed, and that there was no alternative but to sink one ship and combine the crews. (Presumably, this would have meant that the insurer and not the government would pay.) But the master of the Friendship disputed this account of events, insisting that he could have taken the ship as far as Batavia.
14 September 1789 – The Solicitor to the Admiralty, James Dyson, sent a State of the Case to the Navy Board concerning the Friendship.
15 September 1789 – The Navy Board had received and perused the state of the case, and returned it to Dyson. (TNA ADM106/2347/130; TNA ADM106/2631)
The Case recounted the evidence and concluded:
"It appears very obvious from the tenor of the agreement that the Masters of the said transports never considered Lieutenant Shortland’s certificate (as they have called it in the said agreement) at all binding upon himself or government to pay for the loss. If they had, why does not the owner of the Friendship claim the freight as well as the value of the hull from the time she was abandoned to the Alexander’s arrival at Deptford which he has not however thought fit to do although Walton the Master hath stipulated in the said agreement that in case government should allow her value and freight his owner shall have no claim whatever on the owners of the Alexander.
"It is also clear that if both the Masters and the crew had persisted in staying by their respective ships and both of them had been lost the insurers and not government must have made good the loss; but the Master of the Friendship now pretends that he was always averse and objected even down to the 28th of October, the day his vessel was scuttled to her being destroyed and that the reason he did not oppose the Lieutenant’s order in this respect being carried into execution was from an apprehension that in case of refusal his owners would have been mulcted by the Navy Board for breach of orders. Whereas he must well know (having the Charter Party on board) that he was not bound to obey the order in question or any other that was not comprehended in the terms of the Charter. He however contends that Lieut. Shortland has by the said order made himself liable to pay the value of the Friendship’s hull to his owners, who, in case the Navy Board refuse to make good the loss will immediately commence an action against him to receive the same." (Case Relating to the Friendship Transport, TNA T1/695/245-6)
28 November 1789 – The Case asked the chief law officers whether an action might be maintained against Lieut. Shortland or the Navy Board.
The opinion of the law officers was written at the foot of the Case:
"How far it might be prudent to resist the present demand considering the importance of giving reasonable encouragement to persons to abandon their property in the hope that government may make them some compensation in cases where His Majesty’s officers think it expedient for the purpose of saving dispatches or for other purposes of public utility that they should be invited to sacrifice their property we do not propose to determine. It does not appear to us that the Charter Party forms any ground for compelling the Navy Board to pay this money and with respect to Lieut. Shortland, we incline to think that in the circumstances of this case an action could not be maintained against him as his order, we incline to think, can neither be considered to amount nor was considered by the Captains to amount to a personal undertaking that he would himself pay the value of the hull if the Navy Board did not. We incline to think that it cannot be successfully be contended upon any grounds stated to us that in this case the Navy Board have upon any implied undertaking not expressed in the Charter Party but arising from the usage of the service made themselves liable. We are not sure that a jury would be by any means disposed to discountenance this demand, Lieut. Shortland having expressed so little doubt of what he expected from the Commissioners, unless they can be induced to feel the necessity of resisting on account of the precedent the application of the owners coming in the form of an assertion that they have a right to recover. If an action is brought, before the defendant pleads, it will be right to see the declaration in order to determine how far it may be necessary for the purpose of making out the defence to file a bill for discovery." (Case Relating to the Friendship Transport, TNA T1/695/246)
Loss of Provisions
The provisions for the use of the convicts throughout the voyage were not considered part of the cargo, and could not be claimed under such policies.
Princess Royal (1822)
The Princess Royal was taken up by the Navy Board in June 1822 to carry convicts and stores to New South Wales. In September, she took on board 156 convicts, 35 soldiers and assorted others, but on the 14th of October, whilst in the Downs, she suffered damage in a storm and was forced to return to the Thames. She was unable to proceed with this voyage.
The owners claimed insurance, but sought a contribution from the Victualling Board for the provisions that had been shipped for the convicts. The ship was insured for £4,500, and the freight at £1,866.14.10, and the value of the unconsumed provisions was £1,162.9.9. The general average loss claimed was £280.5.0. If the Victualling Board were liable to contribute to this loss, their proportion would have been £41.13.9.
Under normal circumstances, a general average could not be claimed in respect of the food and clothing of passengers, but the plaintiff argued that the convicts were not passengers but rather the cargo. The Victualling Board had an interest in the stores necessary for the support of the convicts, and were thus liable.
The court rejected this line of argument. Best C.J. said:
"It is not every object of value which has been held liable to a contribution for average, but only such stores as are termed merces. Merces has never been held to extend to provisions, but includes only the cargo put on board for the purpose of commerce. . . things of light weight, but of considerable value, must, contribute, if they belong to the cargo, but not if they belong to the passengers. Provisions are laid in for the passengers, and must be esteemed to belong to them. Further to this, the ship is always brought into average according to her reduced value at the end of the voyage, when the provisions have mostly been consumed. As to the argument, that the convicts must be esteemed the merces upon this voyage, and so the stores laid in for them be chargeable as parcel of the merces, it is clear that whether cargo or not, they cannot be brought into contribution, because human life is not the subject of average. If, therefore, the convicts themselves cannot be brought into contribution, much less can the provisions, which are merely accidental to their passage."
Mr Justice Park wrote:
"I have been astonished how a case could have been granted in this instance. No question has ever before been raised upon the point. Provisions have always been held an exception to the general rule respecting contribution. The rule is, that all merchandize out on board for the purpose of traffic, is liable to be brought into contribution, and in merchandize is included all property of great value, unless attached to the persons of the passengers; but property so attached does not contribute, and all the writers on the subject go on to say, that the owners are not liable to contribute for the victuals and ammunition of the ship. Convicts are not to be considered as cargo, because, though average has been allowed for slaves thrown overboard, the authorities are clear, that there can be no estimation of the life of a freeman." (Brown v Stapylton, Court of Common Pleas, Easter Term 1827, 4 Bingham 119, in Thomas Sergeant and John C. Lowber (eds.), Reports of Cases Argued and Determined in the English Courts of Common Law, Vol. XIII, Philadelphia: P.H. Nicklin and T. Johnson, 1839, pp.367-369)
Owners of convict ships could find that their insurance contracts were void if they engaged in illegal practices (such as smuggling) in the course of the voyage.
Cases regarding the Active and Albemarle (June 1794 to May 1798)
The Active and the Albemarle had carried convicts to New South Wales as part of the Third Fleet. They were owned by Camden, Calvert and King, in partnership with Timothy Curtis, and were used for carrying an illegal cargo of metal, which was to be sold in India in order to finance a return cargo of cotton.
The illicit cargo was discovered upon arrival in Bombay and confiscated, but the ships were allowed to take on their cargo of cotton and sail for England. Both ships were taken by French privateers in May 1793, and the owners made a claim against their insurers, which was rejected on the grounds that the undeclared (and illegal) cargo of metal had rendered the contract of insurance void ab initio.
Camden, Calvert & King sued, and whilst succeeding before juries at Guildhall, failed on matters of law. This series of cases was important in clarifying the law in relation to insurance on illicit voyages.
The firm had deposited the insurance policies with Mr John Hunter, an East India Company director who held a power of attorney for the firm’s Bombay agent, John Tasker, as security for the very large bills of exchange he had issued on the firm’s behalf to purchase the cotton in Bombay and to pay for their storage.
Days after the taking of the Active was confirmed, one of the partners came to Hunter and asked if they could have the policy for that ship returned so that they could claim on the policy. Hunter agreed, ‘on condition that on or before the first day of August next they will take up, pay and return into my hands all those bills which you [Tasker] drew on them (which have already been accepted)’. (Hunter to Tasker, 18 June 1793, Tasker Archives, Pembrokeshire Record Office, D/TE/4)
The underwriters refused to honour the contract of insurance on the basis that the ships had been delayed in Goa because of the illicit trade, and this had caused them to arrive in Europe after the outbreak of war. Moreover, they argued, the illicit nature of the trade in metal meant that the contracts were void ab initio.
Camden, Calvert, King and Curtis launched civil proceedings against a number of the underwriters, with those against Walter Ewer, William Anderson and Peter Cazalet becoming test cases. In all, there were forty different cases depending on the outcome of these test cases. (Calvert and Co v The Underwriters, Times, 27 January 1796, p.3 & 16 April 1796, p.3)
The Court Cases
1. The first cases came before the Chief Justice of the Court of King’s Bench (Lord Kenyon) and a Special Jury of Merchants at Guildhall on 18 June 1794. Only two of these cases were reported, both entitled ‘Cambden and Others v Ewer’, one concerning the Active and the other the Albemarle. There were several other cases brought before the court that day, one of which involved.
In the case involving the Active, the defendants made two arguments: (i) that the trade in metal at Goa was illegal; and (ii) that that the ship had been detained because of the stop at Goa to offload the illicit cargo, and that this had resulted in its arrival after the outbreak of war.
Counsel for the plaintiffs replied that the illegality of the trade at Goa was a question only between them and the India Company; and, as to the delay, there was no warranty limiting the duration of the policy, nor was the delay at Goa to be imputed to the trading, inasmuch as the stoppage there was favourable to the vessels, as being during the monsoon, and the repairs of the vessel took place during their stay there, which must have been done at Bombay, at a delay of three or four months.
In his address to the jury, Lord Kenyon picked up on the former argument – that there had been a misrepresentation relating to the illegal the cargo of metal:
"It must be supposed the underwriters took it for granted that the plaintiffs would make the law of the land the rule of their conduct. But, by the law of the land, taking into consideration the licence, these ships were by no means to carry on any traffic in any place beyond the Cape of Good Hope. They were to carry on no traffic whatever kind they came to Bombay. The question here was, whether the power given, and that which was done in consequence of that power, was in the contemplation of the persons who underwrote. They certainly were not. The underwriters could not suppose that the laws of the land would be violated by those whose duty it was to obey them. They had no reason to suppose these ships would stop at Goa."
Kenyon also made several pointed comments about the commercial ethics of the partners:
"On the character of the plaintiffs, his Lordship said he should make no observation, but leave it to the commercial world, to draw from their conduct that conclusion which inevitably must be drawn by all who had seen, heard, and read what their conduct had been. The underwriters ought to have been informed of everything, whereas his Lordship was clearly of opinion that, in this case, there had been a fraudulent concealment of facts."
However, the jury took only a quarter of an hour to find a verdict for the plaintiffs of the full amount of the policy. (Times, 19 June 1794, p.3; Lloyds Evening Post, 18-20 June 1794; Morning Post, 19 June 1794)
An identical case, Cambden v Ewer, relating to the Albemarle, was heard the same day, with the same result. (Morning Post, 19 June 1794)
According to the press, ‘There were other actions by the same plaintiffs, against other gentlemen, underwriters in the same policies of insurance, but which, by agreement, were to abide the event of the above trials.’ (Morning Post, 19 June 1794)
This included at least two actions against William Anderson, and at least one action against another underwriter (probably a Mr Cazalet). On one of the Anderson cases, involving the freight of the Active, the defendants had liberty to move for a non-suit based on an argument by the defence that case had been brought in the name of the wrong defendants. (Cambden and Ors v Anderson, 5 July 1794, 5 Term Reports 709)
It was fully understood at this early stage that there would be further legal dispute, given the difference of opinion between the judge and the jury. (Morning Post, 19 June 1794)
2. Four days later, Ewer and two other defendants challenged the finding in the Court of King’s Bench, obtaining a rule to show cause (although the issue was debated based on Ewer’s case). (Camden & Ors v Ewer, 22 June 1794, Times, 23 June 1794, p.3; Star, 2 July 1794)
This matter was finally argued before the court on the 5th of July, and according to the one newspaper report, it was argued on the question of delay.
The Law Chief Justice read over the notes he had taken at these different trials; after which he observed, that in his directions to the gentlemen of the jury, he gave it as his opinion, that the circumstance of the trading at Goa ought to have been communicated to the underwriters. The gentlemen of the jury who tried the first cause, and who were very respectable, thought otherwise; and the other two juries, who tried the other two causes, who were equally respectable, and who paid great attention, his Lordship observed, to everything he said to them, also thought otherwise. They were of opinion, that the stopping at Goa did not alter the risk, and that therefore the policy ought to have its effect.
The rule was discharged. (Times, 7 July 1794, p.3; London Packet or New Lloyds Evening Post, 4-7 July 1794; Oracle and Public Advertiser, 8 July 1784)
3. At some prior to July, William Anderson obtained a rule to show cause in relation to a separate matter involving the insurance on the freight of the Active. (Cambden and Ors v Anderson, 5 July 1794, 5 Term Reports 709)
This case heard before the full court of King’s Bench on the 5th of July, when the defendants challenged the entitlement of the plaintiffs to sue. There were three plaintiffs on the record, but a declaration claimed the interest in the insurance policy belonged to these three men as owners of the ship, but also in these three men and Timothy Curtis, as investors in the cargo. The case related to the ship’s freight and probably to the Active and not the Albemarle. Curtis did not have an interest in the ship, but only in the cargo, and he had contributed to the premium paid thereon. (No registration has been found for the Active, but the Albemarle was registered on the 11th of February 1791, with Calvert, King and Camden as owners – No.44/1791, BT107/9.)
The defendants were not even called upon to put their case, and the court ruled unanimously that the Register Act was binding and that title to the cargo followed that of the ship, so that King and Curtis had no title in the ship and cargo. The case was non-suited. (Camden and Ors v Anderson, 5 July 1794, 5 Term Reports 709; London Packet or New Lloyds Evening Post, 4-7 July 1794)
4. There is a newspaper report of a case of the same name on the same date, which also dealt with the ownership of the cargo (and thus the right to sue), which differs from the formal published decision.
In this account, the ship was owned by Camden, Calvert, King and Curtis, but only registered in the name of the first three. This makes it likely that the ship in question was the Albemarle, which was registered in the names of the three partners.
In this case, the defendants were called upon to argue their case (suggesting that this was heard before the afore-mentioned case).
And in this case, Lord Kenyon made somewhat more spirited remarks:
"Can these parties who claim this freight merely as resulting from their ownership, enforce payment of freight without shewing that ownership, and without proving a legal title? This is an action on a policy of insurance to recover freight on the Plaintiff’s ownership. Here there is no evidence upon earth that the parties who have brought the action have any title to this ship; and if so, they can have no title to the freight of the ship. They had no right to insure the freight unless they had a title to the ship. His Lordship could not conceive how this case could be rendered confused. If this act was to be frittered away, it would be better to throw it into the fire at once. The intention of the act was, that everything might be done openly, and above board, and that all the world might see that no foreigner had an interest in our ships. He had been told by commercial men, and Statesmen, that this act was of infinite importance to one of the most beneficial trades in the kingdom – the ship building trade. It found employment for a vast body of men, who are the sinews of the country – the builders and navigators of ships. The quantity of shipbuilding in this country exceeded all the shipbuilding trade in the world besides, and it was our duty to preserve it."
The other judges concurred in opinion and the plaintiffs were nonsuited. (Cambden and Ors v Anderson, 5 July 1794, Oracle and Public Advertiser, 8 July 1794)
5. The plaintiffs were now obliged to commence proceedings again, and on the 28th and 29th of July, an unknown number of cases were brought before Kenyon and a Special Jury of Merchants at Guildhall again. There was later reference to forty other causes depending on one of these cases. (Calvert & Co v The Underwriters, 26 January 1796, Times, 27 January 1796, p.3; 15 April 1796, Times, 16 April 1796, p.3) According to one account, there were four causes brought, but only two went to the jury. (Camden v Anderson, 29 July 1794, Morning Post & Fashionable World, 30 July 1794; Star, 1 August 1794)
These were both titled Cambden & Ors v Anderson, one involving the Active and the other the Albemarle. The argument followed the same lines as before.
Interestingly, in this case, counsel for the plaintiffs produced a significant body of evidence to support their claim that the ship was not delayed:
"The Learned Counsel, on a Map he held in his hand, pointed out the two passages from Botany Bay to the Coast of Malabar, contending the more eligible, in the then existing circumstances of the Active and Albemarle, had been chosen. To prove no material difference in the duration of the voyage could arise from touching at Goa, he went at large into an historical detail of the voyage. The risque to the Underwriters had not been thereby increased, but, on the contrary, there then existed a great probability of its being for their advantage; for in the opinion of every man acquainted with naval affairs, a voyage from Bombay to Great Britain, undertaken about the middle of December, would be much safer, and the Ship would arrive as soon as one that should have sailed in the October or November preceding."
To substantiate his statement, Mr Erskine called several Masters of Ships acquainted with the Eastern Seas, who agreed in comparing the conduct observed by the conduct of the Captain of the Active extremely proper and judicious.
On the first point, Lord Kenyon summed up in favour of the plaintiffs:
"Lord Kenyon observed, that three or four Juries having already decided the Cause in favour of the Plaintiff, if it were to be decided by opinion, he would unquestionably be entitled to the Verdict to be then given. His Lordship said he was bound to deliver his opinion. If a Ship went a different way, the insurance would therefore be rendered void; or, if in her proper course, she should make the smallest deviation, it would be fatal, unless occasioned by absolute necessity. Even necessity would be no sufficient plea in the case of the vessel choosing an indirect passage. In the affair before them, the Insurer and Insured equally knew the ship was to go to Bombay; but the design of touching at Goa, though formed before she left England, and known to the Insured, had not been disclosed to the Underwriters. The question was, if that circumstance, not being known to the one as well as the other, was of importance? As for him, he was always averse to setting up a contract for any man, be it ever so advantageous to him."
However, once again he favoured the defendants on the second point:
"Lord Kenyon was decidedly of opinion that this point [the illegality of the trade in metal] would not bear the defendants out in point of law, but summed up in favour of the defendants upon the general merits of the case, upon the ground that there was a concealment at first of the illicit trade in contemplation."
After brief consideration, the jury found a verdict for the plaintiffs, with £478 in damages. (Cambden v Anderson, 28 July 1794, True Briton, 1 August 1794; Morning Post & Fashionable World, 30 July 1794; Star, 1 August 1794)
6. In the second case of Cambden v Anderson argued that day, the defendants argued a different point, insisting that the failure to disclose to the underwriters a letter from the firm’s Bombay agent, John Tasker, written on 12 May 1792 and received in December of that year, advising that the ships had not yet arrived.
Counsel for the plaintiffs contended that their disclosure of this circumstance to their broker, Mr Dallas, previous to his acting to them, acquitted them of any concealment towards the insurers. The jury once again returned a verdict for the plaintiffs. The remaining causes against the other insurers abided the event of those sent to issue. (Cambden v Anderson, 29 July 1794, Morning Post & Fashionable World, 30 July 1794; Star, 1 August 1794; Times, 25 & 27 October 1794, p.4)
7. For reasons that are not obvious at this stage, the case that was next heard before the jury at Guildhall was Camden & Ors v Cazalet (or Owners of the Ship Active v Cazalet, as it was called in one report). This case came on before the court on 17 December 1794 and was concerned with the insurance on the Active, out and back.
The policy of insurance was opened upon the vessel, at and from London, to any port in New South Wales, and at and from thence to any port in the East Indies, Persia, China or elsewhere, and at and from thence, with liberty to touch, stay, or trade at any place, either on this, or on the other side of the Cape of Good Hope.
Counsel for the Plaintiffs argued that the course which the ship had taken was the best and most expeditious at that season of the year, and that by the policy of insurance, she had a right to go where she pleased.
Counsel for the Defendant maintained the policy of insurance had been entered into on the supposition that the vessel was to sail straight from New South Wales to Bombay. Instead of this, she had taken in a cargo of copper in England, besides the Government freight, with which she touched at Goa, with a view to dispose of it. In this way, she had taken three months longer to her voyages than the other ships which had kept the regular course from Botany Bay to Bombay, and that the Proprietors had both violated the contract which the government had made with the East India Company, and infringed upon an article of their policy.
Lord Kenyon was of opinion that the defence could not be sustained by the Jury, and that as the Ship was permitted to touch and trade at ant port, either on this or the other side of the Cape of Good Hope, the port of Goa must be included in this clause of the Policy. The Jury found a verdict for the Plaintiffs of £200. (Cambden & Co v Cazalet, 17 December 1794, Morning Post & Fashionable World, 19 December 1794; Sun, 19 December 1794; True Briton, 19 December 1794)
8. At some point (probably in January), the defendants applied to the court and obtained a rule for the plaintiffs to show cause as to why there should not be yet another new trial. This case was brought before King’s Bench the 6th and 7th of February as Cambden & Ors v Anderson. It is unclear which ship this related to, but it appears to have been concerned with the policy on one of these vessels out and back.
The legal argument seems to have been based on misrepresentation and the impact of a 1793 amendment to the legislation granting the East India Company’s monopoly.
Kenyon signalled that the great question to be debated was the Act of Parliament (33 Geo. 3, c.52) which granted to the Company a renewal of their charter. The plaintiffs argued that the Act had repealed the penalties for illicit trade, and in any case, the provisions of that legislation related to the relationship between the plaintiffs and the Company, not the plaintiffs and the defendants.
The decision of the Chief Justice is somewhat confusing. He admitted that doubts remained in his mind, and without giving judgment, the court ordered that the plaintiffs were free to bring yet another action.
The Lord Chief Justice also ordered that the underwriters must pay their subscription money into the Bank of England, (in all £10,000) and that it should be invested.
The plaintiffs argued that it had always been usual in policies of insurance, for all actions against the underwriters to abide the event of the first. Lord Kenyon replied, ‘That is very true, where the verdict has been perfectly satisfactory to the court and jury. But that is not so in this case.’ (Cambden and Ors v Anderson, 6 February 1795, Times, 7 February 1795, p.3; Star, 13 March 1795; Times, 9 February 1795, p.3; Sun, 13 February 1795)
9. A case against William Anderson, relating to the policy on the Albemarle out and back, had been heard at some point in time. It is unclear whether this was in July 1794 or subsequent to the case heard in King’s Bench in February 1795. (Calvert and Co. v Underwriters, 26 January 1796, Times, 27 January 1796, p.3) This case resulted in a Special Verdict which stated the facts upon which the Court of King’s Bench subsequently relied.
The principal legal point before the King’s Bench related to the interpretation of 33 Geo.3, c.52 and its impact on the legal status of contracts of insurance covering cargo carried into the East Indies in breach of the Company’s licence. This case is variously described as Calvert & Co v Underwriters, and later Camden & Ors v Anderson.
The plaintiffs put forward an arcane legal argument about the impact of the Act on the status of clandestine trade, and the relations between contracting parties. It was argued on the 26th of January and the 15th of April 1796, and given the ‘very large amount’ of money at stake and the fact that some forty actions depending on the result, the court reserved judgement. (Calvert and Co. v Underwriters, 26 January & 15 April 1796, Times, 27 January & 16 April 1796, p.3)
Lord Kenyon found that the provisions in 10 Geo. 3, c.52 which repealed the penalties laid down in previous Acts were merely tidying up aspects of the law and did not have the effect of repealing the principal law of William III which made unlicensed trade illicit:
". . . the Legislature appear to have anxiously expressed their intention in the 33 Geo. 3, c.52, that only that part of the Stat. 9 & 10 W. 3, which is particularly pointed out should be repealed. If they had intended to repeal the whole of that Act of Parliament and that the prohibitions contained in it should be entirely out an end to, it might have been effected by fewer words than are used to repeal that part of the Act. . .
"If the Statute of William has never been put an end to, then the policy in question was effected in contravention of that Act of Parliament, as breaking in upon the whole monopoly granted to the East India Company; and therefore it is void. On the whole we are of opinion that judgment must be entered for the defendant."
Judgement was entered for the defendant. (Camden and Ors v Anderson, 7 June 1796, 6 T.R. p.723. See also Times, 8 June 1796, p.3; Star, 9 June 1796; Telegraph, 10 June 1796)
10. Following this decision, the defendants applied to the court to have their funds released from the Bank of England. This was resisted by the plaintiffs who made it clear that their legal options were not exhausted: ‘though they entertained all imaginable respect for the judgment of the Court of King’s Bench, yet it was very possible the House of Lords might reverse their judgment’.
On 14 June 1796, the court ordered the money to remain in the bank, but ‘it was to be laid out in the Funds, though not to be affected by their fluctuation; but that identical sum was to be transferred to the party in whose favour judgment was ultimately given’. (Calvert & Co v Anderson, 14 June 1796, Times, 15 June 1796, p.3; Star, 17 June 1796; London Packet or New Lloyd’s Evening Post, 13-15 June 1796; Sun, 17 July 1796)
11. The plaintiffs then appealed to the Court of Exchequer Chamber, by way of a writ of error, seeking to overturn the decision of the Court of King’s Bench. The case was twice argued before the court, in June-July 1797 and April-May 1798. No newspaper reports of the legal argumentation survive, but a copy of the clerk’s original notes are kept at the National Archives. (‘Copy of Mr Gurney’s Shorthand Notes of Arguments’, TNA HCA 30/1003)
The decision in this case was handed down by Chief Justice Eyre on the 19th of May 1798, and utterly dismissed the interpretation which the plaintiffs had sought to place upon the statute.
"If we find an action brought upon a contract for a few bags of tea, or a few tubs of foreign spirits bought and sold in the course of a contraband trade, we say without hesitation, this is a contract against law, and no action can be maintained upon it, and if the action were founded upon a policy of assurance upon a ship, or goods, employed or carried in the course of that contraband trade, we should not hesitate to say, that no action lies upon such a policy; and surely it must be a reproach to law and justice if we were now to countenance an action upon this policy, the object of which is, to assure to these plaintiffs the safety of a ship engaged in a trade so illicit and clandestine as this trade has been declared by parliament to be, under such aggravated circumstances of fraud and collusion, in the manner of carrying it on, as are described in the special verdict, and which it might have been reasonably supposed no man who had a regard for his reputation as a merchant, or had any sense of truth and private honour, would have suffered to have stood against him upon the public records of one of the King’s supreme Courts of Justice. Let this judgment be affirmed." (Camden and Others v Anderson, In Error, 19 May 1798, 1 Bos. & Pul. p.272)
12. In June 1796, counsel for the plaintiffs had canvassed the possibility of an appeal to the House of Lords, but prior to the 19th century, this was exceedingly difficult, and there is no evidence that an attempt was made. (Calvert & Co v Anderson, 14 June 1796, Times, 15 June 1796, p.3; Star, 17 June 1796; London Packet or New Lloyd’s Evening Post, 13-15 June 1796; Sun, 17 July 1796)
The published cases were cited in legal texts for more than half a century:
In June 1798, the Court of Exchequer Chamber, in Farmer v Russell & Another, referred to its decision the previous month:
It was held in the Exchequer Chamber in Camden and others v Anderson, that violating a prohibition on a species of commerce in which the interest of the country was concerned, was not merely malum prohibitum but malum in se. . . (Farmer v Russell & Anor., 19 June 1798, 1 Bos. & Pul., p.298)
Then a number of legal texts on this question of the East India trade and international trade more generally:
". . . no legal insurance can be made on any commerce carried on with any ship with any of the British colonies, in contravention of the laws made for the regulation of the commerce with those colonies.
"The vast profits arising from the trade to the East Indies have always afforded a strong temptation to private adventurers to engage in a contraband commerce with those parts, notwithstanding the charter and the acts of Parliament by which the monopoly of that trade has been, from time to time, secured to the East India Company. The act by which this was first effectually done, was by the stat. 9 & 10 W. III c.44. And though this act has been subsequently altered and partly repealed by subsequent statutes, yet it has never been wholly put an end to; on the contrary, any infringement of it is still illegal: And though such parts of it as inflicted penalties, have been repealed by the stat. 33 G. III, c.52; and though this last act has provided that no acts, or parts of acts, thereby repealed, shall be pleaded or set up in bar of any action, &c, yet the following case proves that it is competent to underwriters who have subscribed a policy on a ship trading to the East Indies, in contravention of this act, to avail themselves of it, in defence to an action on such policy.
"The ship Albemarle was insured ‘At and from London to New South Wales; and at and from thence to all ports and places in the East Indies, Persia, China, or elsewhere; and at and from thence until her safe arrival back at London; with liberty to touch, stay, and trade at any port or place whatsoever, as well on this, as on the other side of the Cape of Good Hope.’ An action being brought on this policy, for a loss by capture on the homeward voyage, a special verdict was found, which stated in substance, as follows:- The plaintiffs being employed to convey convicts, stores, and provisions, to New South Wales, obtained, from the directors of the India Company, a licence for the said ship for a voyage to New South Wales, &c; and from thence to Bombay, there to purchase cotton, to be legally imported, and sold at the Company’s sales in London. And the plaintiffs covenanted that the owner, master, or mariners, should not carry on, or be concerned in, any kind of trade in the East Indies, or elsewhere within the limits of the Company’s charter, &c.; and that if they should carry on any such traffic, they should be considered as illicit traders, the goods forfeited, and the persons be liable to the same penalties as unlicensed traders. The plaintiffs ordered the master, after the delivery of the convicts, &c. at Port Jackson, to proceed to Goa, and there dispose of, or send by other vessels, to Bombay for sale, copper and other articles, not authorized by the license of the Company. The ship sailed with the above unlicensed articles on board; and the plaintiffs wrote to their agent at Bombay, informing him of their instructions to the master. The ship, pursuant to the orders of the plaintiffs, sailed from Port Jackson to Goa, where the master sold the unlicensed cargo, and then sailed to Bombay, from whence, on the 23rd of December 1792, she sailed for London, and was captured in the course of her voyage. The special verdict stated further that all the above facts happened before, and the action was commenced after making of the stat. 33 G. III, c.52, and that the plaintiffs were British subjects resident in England. – The stat. 33 G. III, c.52, continues to the Company, for a further term, the possession of the British territories in India, together with their exclusive trade, under certain limitations. The 146th section repeals so much of the stat. 9 and 10 W. III, c.44, and of so many other acts, as inflicted penalties or forfeiture for illicit trading to the East Indies. The 147th section provides, that this repeal shall not extend to any offence committee against any of the statutes thereby wholly or in part repealed, before the passing of the act. The 150th section, ‘for obviating any doubts, how far, notwithstanding such repeal, contracts made contrary to the restrictions contained in the said acts were binding’, enacts, ‘That it shall not be lawful for any defendant in any action then depending, or thereafter to be brought, to plead or set up any act so repealed, in the whole or in part, in bar of such action; but that the plaintiff shall have the same remedy and judgment as if the said acts, or parts of acts, so repealed, had never been made’. Upon this case it was alleged on the part of the defendant, that the 146th section of the stat. 33. G. III., c.52 repealing so much of the former acts as inflicted penalties for illicit trading to India, did not extend to any of the provisions for granting and securing the exclusive trade to the company; and that, by several acts and parts of acts remaining unrepealed, such exclusive right was reserved to them, and all others prohibited from invading it; and the proviso in the 147th section, was relied on to shew that such repeal should not extend to any offence committed against any of the acts thereby wholly or in part repealed, before the passing of the act. It was therefore insisted, that the policy being effected to protect a trade, which was meant to be carried on contrary to the spirit and intention of the existing laws, was illegal and void; and that the objection might be taken advantage of in this action, although of the right of suing for the former penalty was taken away from any common informer. On the part of the plaintiffs it was replied that, as all these transactions happened before the passing of the stat. 33 G. III, c.52, the illegality of them could not be taken advantage of in this action, for the 146th section repealed all forfeitures and penalties contained in the acts there enumerated against such illicit trading; and the 147th section merely saved the right of such objection, as to offences already committed, to the company themselves. But that the 150th section prevented any private subject from setting up any of the repealed acts or clauses in bar of any action on any contract made before, as a pretext that such contract was made contrary to the prohibition contained therein. The court, on full consideration, determined that the stat. 9 and 10 W. III, c.44; was still in force, and that as the policy was effected in contravention of that act, as breaking in on the monopoly of the company, it was void, and that the defendant was therefore entitled to judgment. – Lord Kenyon, in delivering the opinion of the court, said: ‘The ground on which my opinion proceeds in this cause in this cause is, that the stat. 9 and 10 W. III. has, from the time when it was passed down to the present moment, been an existing law, operating on the rights of the parties. And though subsequent acts of parliament have continued the prohibitions enacted by that statute, and though some of those acts have been totally repealed, and others repealed in part, the legislature appears to have anxiously expressed their intention in the stat. 33 G. III, c.52, that only that part of the stat. 9 and 10 W. III, c.44, which is particularly pointed out, should be repealed. If it had been intended to repeal the whole of that act, and that the prohibitions contained in it should be entirely put to an end to, it might have been effected by fewer words than are used to repeal that part of the act. And on considering the whole of this last act, it appears to me that the construction insisted on by the defendants is the fair one; namely, that the legislature meant to repeal the prohibition to lent money to foreign companies, &c; but by no means had it in contemplation to abridge, or take away, any of the consequences of the monopoly given to the India Company. The words in the different acts shew that the stat. 9 and 10 W. 3, was always considered as being in force.’ This judgment was afterwards affirmed upon a writ of error in the Exchequer Chamber." (Samuel Marshall, A Treatise on the Law of Insurance, London: J. Butterworth, 1802, Vol.1, pp.55-59)
"Insurance made on voyage prohibited by law; void ab initio. . . Camden v Anderson, 6 T.R. 723, 1 Bos..and Pull. 430." (Thomas Mortimer, A General Dictionary of Commerce, Trade and Manufactures, London: Richard Phillips, 1810, Ins.)
"So, also, a contract is void. . . if made. . . for insurance on a voyage, really intended in violation of the non-intercourse acts." (William Wetmore Story, A Treatise on the Law of Contracts Not Under Seal, Boston: Little & Brown, 1844, p.141)
Insurance in War
The outbreak of war significantly increased the cost of insurance. In 1793, with the outbreak of war against France, insurance costs for South Sea Whalers increased from 7-10 percent to something in excess of 25 percent (since in early March of that year, a return convoy to St Helena was rejected at that rate). (Robert Christie to George Chalmers, Esq., 14 March 1793, in Enderby Papers, in Mitchell Library, MLA322, p.108)
Sailing with a convoy would result in a discount on the premium – a ‘Return of Premium for Convoy’, apparently of 5% in 1795. (see TNA T29/68/368)
Boddington and Sugar Cane (1792)
The Boddington and Sugar Cane were commissioned just as the war was breaking out. They contracted with the East India Company in late 1792 based on peacetime costs for crew and insurance, and then found it necessary to pay at wartime rates. Even though the Court of Directors did provide some relief to its regular ships caught in this position, they repeatedly refused to do so for these extra ships.
18 June 1793 – Messrs Thomas Seale and Thomas Allen wrote to the Court of Directors, pointing out that when they chartered the Boddington in November, ‘it was then profound peace’, During her outfit, ‘the present disturbance broke out’ and they faced additional expense in equipping her, in wages and insurance. Notwithstanding these extraordinary expenses, they had not delayed in performing their engagement, but those extra costs would continue throughout the voyage. They laid their cause before the Honorable Court, ‘not doubting but that your Honors will take our case into consideration and afford us some relief’. (IOR L/MAR/C/531, Appendix No.1343, p.750)
19 June 1793 – The Court read the letter, but I can find no further consideration of the issue. (IOR B/117/213; IOR L/MAR/C/531, p.573)
At the same time, the Court received numerous applications from the owners of its regular ships that were in a similar situation, and on the 17th of July, the Court of Directors agreed to partial compensation. Given that on other occasions, the Court was prepared to recognise extenuating circumstances involving the extra ships, this was a harsh policy. (Committee of Shipping, 12 July 1793, Court of Directors, 17 July 1793, IOR L/MAR/C/531, pp.575, 577-578, and various letters in the Appendices from IOR L/MAR/C/531, p.750)
6 October 1795 – The owners of the Boddington and the Sugar Cane applied again when the ships returned. On this date, Seale and Allen, and William Seaton wrote separately to the Court of Directors, seeking compensation in similar letters, for the added expenses in consequence of the disturbances breaking out two days after they made their engagement:
"We delayed not a moment in performing our engagements notwithstanding, and as the voyage has lain so heavily on us, so as to become a total loss, we pray your Honors to take our very hard case into consideration and grant us such relief as your Honors may conceive our request may deserve.
Ship Boddingtons Difference of Expenses and Outfit in Consequence of the War
£ s d On dry provisions 61 3 6
On Beef and Pork 62 11
On Cooper’s Bill 10
On Cordage Bill 42 18
On Sailmaker’s Bill 80
Insurance on £7,000 instead of 5 per cent paid 12 per cent, difference of 7/7s per cent 514 10
Difference wages between 26s and 40s 28 men, difference 14s per month, from May 1794 to August 1795 per Boddingtons 294
1065 2 6
Difference of expense and outfit of Sugar Cane in consequence of the war
£ s d On dry stores 37 18
Beef & Pork 61 19
Cooper’s Bill 8 15
Sailmaker 57 11
Insurance on ship at £6000 at 7/7 441
Ditto 3,500 freight 275 5
On wages between 26 and 40 is 14 for 28 men 12 months 235 4
1158 12 (IOR L/MAR/C/531, Appendices 1801 & 1802, pp.998, 999)
7 October 1795 – The Court of Directors read these letters at its meeting this day and referred then to the Committee of Shipping. (IOR L/MAR/C/531, p.915)
9 October 1795 – The Committee read them, however, no further action was taken at that time. (IOR L/MAR/C/531, p.915)
3 February 1796 – Seale and Allen wrote again, which prompted the Committee of Shipping to address the matter once again.
16 February 1796 – The Committee read the Minutes of their meetings on 28 November and 20 December 1792, and 2nd, 18th and 22nd January and 17 June 1793, and resolved:
"That it appears to the Committee that an agreement was made with Mr William Richards jun. on the 28th November 1792, for the Boddington and Sugar Cane to bring home a cargo of saltpetre, sugar and gruff goods from Bengal, after they should have performed the service for which they were taken up by Government, of conveying convicts to New South Wales; that the Sugar Cane was again tendered on the 20th December 1792, by Mr William Hamilton, that on the 2nd and 18th January 1793, further papers were presented respecting the management of that ship, and that she was finally taken up on the 22nd January 1793, precisely on the terms agreed for on the 28th November preceding for the Boddington; that these several periods were previous to the declaration of war, and that on this ground the owners can have no claim for compensation.
". . . if it were otherwise, the extra expenses should attract to the outward bound, and not to the homeward bound voyage." (IOR L/MAR/C/531, p.993)
19 February 1796 – The Court of Directors considered the report of the Committee of Shipping dated 16 February, on the request by the owners of the Boddington and Sugar Cane that they be allowed compensation for the additional expense they were put to in consequence of hostilities having commenced after they made their engagement with the Company and before the charter party was signed. They had recommended that the request not be complied with and the Court agreed. (IOR B/122/1311)