Legal Papers of John Adams, volume 1
1769-06
Bac. 3. 599.2 Tit. Merchant. “Where a Policy is a perfect Cheat as where a Person, having certain Intelligence that a Ship is lost, insures so much, this shall not bind the Insurer.”
Molloy. B. 2, c. 7, §5, bottom.3 “A Merchant having a doubtful Account of his Ship, insures her, without acquainting the Insurers of her danger; Chancery relieved against the Policy of this fraudulent Insurance.”
Ditto. “If the Party, that caused the Assurance to be made saw the ship was lost,
4 or had certain Intelligence, such subscription will not oblige, the same being accounted a mere fraud.”
But Yet,
Molloy. B. 2, c. 7, §5. “Those Assurances are most dangerous when these Words are inserted 'lost or not lost'; which is commonly done when a ship hath been long missing and no Tidings can be had, the Premio (especially in Time of War) will run very high, sometimes 19230 or 40 per Cent, and though it happens at the Time that the subscription is made, the ship is cast away, yet the Assurers must answer.”
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
3 Bacon, Abridgment
599. Quotation marks supplied. Italics are JA's.
Charles Molloy, De Jure Maritimo et Navali 289 (London, 8th edn., 1744). Quotation marks supplied. Italics are JA's.
The original reads “wreckt,” rather than “was lost.”
1771-06
Lowell. Cun. 173. Concealment of Intelligence, a Fraud. Each Party ought to know all the Circumstances.2
178.–179. 184.3
79 days from G
J. Pedricks Deposition. Gordons Protest. Jab. Harlow's Deposition.5
Captn. Jos. Howard.
6 Arrived from M
Mr. Shillibeare.7 I asked whether the Vessells were in Time or 193whether the Chances were fair. A few days after Mr. Hooper8 came into the office and enquired if Lee said nothing of his having a Chance. Then he has taken you in, &c. From 20 to 26 or 27 days a common Chance.9 I would not have wrote under 50 Per Cent. I did not know there was such a Man as C
C. Hodges. 3 Vessells together.10 Dont remember any Questions put to him. No dispute—all seemd fair. Hooper came in and said We were taken in. Somebody said We should have looked to our Title. Never knew a Policy underwrote without enquiring when the Vessell sail'd. Something said in the office about the Vessells being over set before she sail'd. At the Time when Lee was in the Office and Cabbit11 present talking with Lee. It appeared to me to be in Time and a customary Praemium. One said she was fair, in season, in Time. They often take it from the 1st. underwriter
Jos. Hodges.
12 Lee wrote the Minutes himself. Cabbit said fair Chances I suppose. Yes. I Asked how long those Vessells had been out. Lee made a Pause. Lee said the 1st. Advice will give an Account of 2 of em. And it did. 2 were taken. I relyed upon Lees Honour that he would not put in an unfair Chance. 30 days a Chance. I did not know of the Arrival of Howard. I would not have wrote upon any Consideration. Dont remember Powers13 being mentiond. Fellows not mentiond that I remember. Many Vessells at that time had long Passages. Knew Howard was an
Jona. Gardiner Junr. Nothing said of Howards Arrival. I did not know of it. Coll. Lee once scratched his Name out once and said he 194never took desperate Chances, and never put in unfair ones. A Man of Character declaring it is a fair Chance is generally satisfactory.
Jona. Ropes Junr. I underwrote for Pedrick, and was a good Mind to take £20 more for Lee but did not. I did not know of Howards Arrival. I knew when she sailed. But it might be because, We must write on all 3 or none. The Risque not so great when a Number, as on one. Dont know that ever I underwrote first without enquiring when the Vessell sailed, and the Circumstances.
George Dodge.
14 C
Warwick Palfry. She might have returned and made her Voyage in 79 days. I knew a Vessell that performed 3 Voyages
Saml. Ward. Lee said he never put a Vessell in out of Time and never took a desperate Chance.
Gordons Sailing Orders.15
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
Timothy Cunningham, The Law of Bills of Exchange, Promissory Notes, Bank Notes, and Insurance 174 (London, 3d edn., 1766). The language here was drawn from two cases in which the facts favored the insurers rather more than in the instant case. See De Costa v. Scandret, 2 P. Wms. 170, 24 Eng. Rep. 686 (Ch. 1723) (Insured had heard that ship looking like his was taken); Seaman v. Fonereau, 2 Str. 1183, 93 Eng. Rep. 1115 (K.B. 1743) (Insured had intelligence that vessel had been leaky and was lost sight of just before a hard gale).
That is, Cunningham, Bills of Exchange 178–179, 184, citing Rooke v. Thurmond (unreported, K.B. 1743) (Dictum that policy void if insurers could prove that insured knew that another vessel, which sailed from Carolina ten days after the insured vessel, arrived in England seven days before the underwriting); Green v. Bowden (unreported, K.B. 1759) (Policy void where insured had informed insurers that his ship, which was lost on 25 Aug. between Naples and Leghorn, had been safe in Naples on 8 Aug., when in fact she had been safe there on the 3d).
That is, 79 days from 4 Sept., the date on which the master, Nicholas Gordon, sailed from Marblehead, until 22 Nov., the date of the underwriting.
The deposition of Joseph Pedrick, owner of the other half of the enterprise; the protest of the master, Nicholas Gordon, on the loss of the Merrill; and the deposition of Jabez Harlow, master of the vessel which finally brought Gordon and his crew home, may be found in SF 132239. This evidence supports the allegation that the master's orders were to proceed to Martinique. For relevant portions of the protest and other evidence on this question, see No. 11.
Captain Howard's deposition, “Sworn in Court, June 19, 1771,” states in part that
“About 14 days before I left Martineco one Monsr. Misinaire arrived there from Guadeloupe of whom I inquired if any vessels was there belonging to Marblehead or Salem. ... As to vessels he told me there was none belonging to Ither of those places. ... When I arrived at Marblehead I was inquired News of by Sundry persons and at Salem when I Entered but can't Remember any persons Particularly. I heard no news of Capt. Nichols Gordon belonging to Marblehead from the time I left it to my return [3
Nov. 1762].” SF 132239.
William Shillaber, the underwriter whose successful defense to Lee's action started the litigation. See note 2 above. Shillaber's deposition of 3 Nov. 1770, with some further details of the underwriting and of the conversation with Hooper, is in SF 132239.
Robert “King” Hooper, Marblehead's wealthiest merchant, and Lee's brother-in-law, Roads, History of Marblehead 350, 354; Stark, Loyalists of Mass.
222–223.
That is, a chance to have heard news of the vessel's safe arrival. Here the “Chance” was 34 days, the interval between the departure of the Merrill from Marblehead on 4 Sept. and Howard's departure from Martinique.
Presumably John Hodges (the “C” standing for “Captain”), whose deposition in the file of Goodhue v. Lee indicates that he was present in the insurance office at the time of the underwriting. SF 131923. Lee insured two other vessels with the Merrill. See Shillaber's testimony, text at note
Josiah Cabot, one of the underwriters.
Joseph Hodges, one of the underwriters.
Another Marblehead captain who departed in one of Robert Hooper's vessels at about the same time that the Merrill sailed. See Shillaber's deposition, cited in No. 11, note
One of the underwriters.
Gordon's orders are in SF 132239. In his deposition, sworn in court in Nov. 1770, also in SF 132239, he contradicted their impact. See the relevant parts of each as set out in JA's minutes in No. 11.