COUNSEL: Scrutton, K.C., and F. D. Mackinnon, for the plaintiffs.

J. A. Hamilton, K.C., and Leck, for the defendants.

 

SOLICITORS: For plaintiffs: Thos. Cooper & Sons.

For defendants: Waltons, Johnson, Bubb & Whatton.

 

JUDGES: Pickford J.

Vaughan Williams, Farwell, and Kennedy L.JJ.

 

DATES: 1908 June 18.

1909 Jan. 27, 28.

 

 

Insurance (Marine) – “Pirates,” Meaning of in Policy – Seizure of Goods by Political Malcontents – “Warranted free of capture, seizure, and detention, piracy excepted.”

 

Goods were shipped upon a vessel for carriage from a place at the mouth of the Amazon to a place far inland upon a tributary of a tributary of that river, situated in a remote territory belonging to Bolivia on the boundary between that country and Brazil. These goods were insured for the voyage by a policy in the form of a marine policy against, among other risks usually specified in such a policy, “pirates” and “all other perils” that should come to the hurt, detriment, or damage of the subject-matter of insurance. The policy contained the following clause: “Warranted free of capture, seizure, and detention, and the consequences thereof, or any attempt thereat, piracy excepted, and also from all consequences of riots, civil commotions, hostilities, or warlike operations, whether before or after declaration of war.” The goods insured consisted of provisions and stores which belonged to the Bolivian Government, and were intended for Bolivian troops engaged in establishing the authority of that Government in the before-mentioned territory. Certain malcontents, mostly Brazilians, who were desirous that the authority of the Bolivian Government should not be established there, had fitted out an expedition which ascended the Amazon in armed vessels for the purpose of resisting the Bolivian troops and establishing an independent republic in the before-mentioned territory. Those on board one of these vessels stopped the vessel on which the goods insured were shipped and seized those goods. In an action on the policy claiming as for a loss through pirates:–

 

Held, affirming the decision of Pickford J., that, even assuming that [*786] the acts of those who seized the goods came within the legal definition of piracy for some purposes, the word “pirates,” as used in the policy, must be construed in its popular sense, and in that sense it meant persons who plunder indiscriminately for their private gain, not persons who simply operate against the property of a particular State for a public political end, and, therefore, there had not been a loss through “pirates” within the meaning of the policy.

 

Held, also, that, having regard to the terms of the warranted free clause, the seizure of the goods could not be treated as coming within the general words “all other perils” as being ejusdem generis with piracy.

 

ACTION tried by Pickford J. without a jury.

 

The action was brought by the Republic of Bolivia on a policy of insurance in the form of a marine policy issued by the defendants upon goods belonging to the Bolivian Government shipped on the steamship Labrea for carriage from Para at the mouth of the Amazon to Puerto Alonzo and (or) other places on the river Acre and (or) in that district.

 

The risks covered by the policy were thus described therein: “And touching the adventures and perils which the company is made liable unto or is intended to be made liable unto by this assurance, they are 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 of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this assurance or any part thereof.”

 

The policy contained the following clause:– “Warranted free of capture, seizure, and detention, and the consequences thereof, or any attempt thereat, piracy excepted, and also from all consequences of riots, civil commotions, hostilities, or warlike operations, whether before or after declaration of war.”

 

The following statement of the facts is for the most part taken from the judgment of the learned judge:–

 

Puerto Alonzo, the Labrea’s port of destination, is upon the river Acre, a tributary of a tributary of the Amazon, far inland in territory belonging to the Republic of Bolivia, known as Colonias, and subsequently as the Free Republic of El Acre. [*787] During the course of the voyage insured the Labrea was stopped at a place called Caqueta, which is upon the river Acre, by an armed vessel called the Solimoes, which had been fitted out by one Carvalho and his associates under the circumstances after mentioned. Those on board the Solimoes seized and carried away the whole of the goods insured on board the Labrea.

 

In 1867, by a treaty between Brazil and Bolivia, the territory of Colonias was either ceded or assured to Bolivia. There was, however, no demarcation of the frontier until 1898, when a commission of delimitation was appointed by the two Governments and a frontier line was fixed, called the Cunha Gomes line. Apparently Bolivia had not before 1898 exercised any effective jurisdiction in the territory, but there was valuable property there, rubber of considerable value being produced, and both Brazilians and Bolivians, but chiefly Brazilians, had settled there, and traded in rubber and other things. What the exact nature of the government of that territory was in those days was not quite clear; probably there was not much government. There was a custom-house at Manaos, and another at Para, at the mouth of the Amazon, and customs were exacted in respect of goods coming down the Amazon from Colonias, but there was no Bolivian custom-house or government set up there, and, if there were any government exercised at all, it was exercised by magistrates appointed by the Brazilian Government, some of whom might have been stationed on the Bolivian side of the Cunha Gomes line. After the demarcation of the frontier was effected, the Bolivian Government were minded to take effective possession of the territory and to establish proper Bolivian government there, and the first step they took was to establish a custom-house at or near Puerto Alonzo; but the representatives sent there were turned out and one of them killed by certain persons, chiefly Brazilians, who were not desirous that there should be a Bolivian government there, and had joined in establishing there what they called the Free Republic of El Acre. About the same time as the establishment of the custom-house at Puerto Alonzo and the establishment of the Free Republic of El Acre, the Bolivian Government sent an expedition from La Paz, [*788] the capital of Bolivia, under the command of one Munoz, in order to take possession of the territory. It was a long and difficult march from La Paz, and the expedition was several months on the way, but it did eventually arrive within the territory, and then the Free Republic of El Acre, for a time at least, disappeared. Some of the republicans crossed the Brazilian frontier, and in Brazilian territory set themselves to work either to re-establish the original Free Republic of El Acre or a government of their own – at any rate to oust the Bolivian Government. The Brazilians near the frontier line seemed to have been very much in sympathy with the republic, or at any rate those persons who were resisting the establishment of the Bolivian Government. That clearly appeared from a speech of the Governor of Manaos which was read in the course of the trial. The Bolivian expedition, although it had arrived at and taken possession of the territory, was in a rather difficult position; it was a very long way from the capital, and it was very difficult to supply the expedition with provisions and stores. They could not very well get them from the Brazilian side, because the Brazilians were not well affected; and it was very difficult to get them from the Bolivian capital in consequence of the distance. Accordingly it was arranged between the Brazilian and Bolivian Governments that the expedition should be provisioned by sending stores and provisions up the Amazon from Para, and this was done on the Labrea, and it was in connection with the insurance of those provisions that the question in this case arose. The before-mentioned Carvalho had been concerned in the establishment of the Free Republic of El Acre, and was among those who were desirous that the Bolivians should not establish any stable government in Acre; and he started or assisted in a movement either for the re-establishment of the Free Republic of El Acre or the establishment of another republic on his own account. In pursuance of this design he and others fitted out an expedition in Para to intercept the stores to be sent up for the Bolivian force, and he intended to intercept them at Puerto Alonzo, and, having got possession of the stores, to attack the Bolivian expedition and to make himself master of the place. With that object they fitted out either two or three vessels, which [*789] were armed, one of them, the Solimoes, being fitted with a quick-firing gun. This expedition went up the Amazon and got somewhere into the neighbourhood of Puerto Alonzo, and there they stopped a number of steamers, but they did not take goods from any of them, when they ascertained that they were not carrying goods for the Bolivian Government. When, however, the Labrea arrived, they stopped her, and, finding that she was carrying goods for the Bolivian Government, they took possession of her. The Solimoes was flying a flag which the persons on board the Labrea thought to be the flag of El Acre. Those on the Solimoes took the stores and then crossed the Bolivian frontier and attacked, or were attacked by, the Bolivian force, with the result that the revolutionary force was defeated and disappeared. It was contended for the plaintiffs that the acts of those on board the Solimoes came under the head of piracy.

 

Scrutton, K.C., and F. D. Mackinnon, for the plaintiffs.

 

J. A. Hamilton, K.C., and Leck, for the defendants.

 

1908. June 18. PICKFORD J.,after stating the facts substantially as above, proceeded as follows: The question is whether, in these circumstances, the loss occurred by piracy. Those on board the Solimoes professed, at any rate, to act on behalf of the republic which they wanted to re-establish, or were seeking to establish, and they were flying a flag which was supposed to be that of El Acre. The plaintiffs say that the loss was by piracy, and their counsel have referred me to several definitions of piracy, some given by writers on international law and some by writers on criminal law. I am not sure that the definitions so given are necessarily in point on the question as to the meaning of the word in a policy of insurance. One definition which was relied on was that given in Russell on Crimes, 6th ed., vol. i. p. 260, and which is as follows: “The offence of piracy at common law consists in committing those acts of robbery and depredation upon the high seas which if committed upon land would have amounted to felony there.” It was said that these goods were forcibly stolen, that there was a felony, and that the offence came within that definition, because “the high seas” [*790] there mentioned must be extended to all waters over which there was Admiralty jurisdiction. In Reg. v. Anderson (1) the jurisdiction of the Admiralty was held to extend to a ship some distance up the river Garonne, and therefore it is argued that this place was within the jurisdiction of the Admiralty. As to that, all I will say at the moment is that I am not satisfied that an illegal act by Brazilians in a place situated upon a tributary of a tributary of the Amazon, that act consisting in taking from a Brazilian ship goods belonging to the Bolivian Government, comes within the jurisdiction of the British Admiralty, but, in the view I take of the case, it is not necessary to decide that point. I was also referred to the definitions of piracy given in Hall’s International Law and Oppenheim’s International Law. The definition given by the latter writer does not seem to be of much assistance to the plaintiffs, as he says that the offence must be committed on the high seas. The definition given by Hall is, no doubt, very wide, but, as I have already said, I am not at all sure that what might be piracy in international law is necessarily piracy within the meaning of the term in a policy of insurance. One has to look at what is the natural and clear meaning of the word “pirate” in a document used by business men for business purposes; and I think that, looking at it in that way, one must attach to it a more popular meaning, the meaning that would be given to it by ordinary persons, rather than the meaning to which it may be extended by writers on international law.

 

This policy was for a river transit up the Amazon, and it was contended that the word must be read in connection with that, and that the people who seized the goods insured must be considered to be pirates in respect of that voyage, although they were not upon the open sea, and although they might not be held to be within the jurisdiction of the Admiralty. I will assume in favour of the plaintiffs – although I am not sure that it is a correct assumption – that, if those people had in other respects the attributes which ought to be attached to pirates in the case of a policy of marine insurance, I ought to hold that the loss in this case occurred by piracy, although what took place was not on the open sea and not within the jurisdiction of the

 

(1) (1868) L. R. 1 C. C. 161. [*791]

 

Admiralty. The facts shew that there was an organized expedition for the purpose of establishing a government in a particular territory, and they also shew that interference with property was only intended, and only effected, so far as was necessary for that object, and not for the plundering of every one indifferently. It was said that Carvalho’s motives were private and personal motives. I do not think I can go into that. Probably in every revolution it is not possible to say that all the persons concerned acted simply from disinterested motives. I can only look at what was done. Did that constitute those people pirates within the meaning of the policy? I do not think it did. As I have said, I have to look at the more popular or business meaning of the word “piracy,” and I do not think that can be better expressed than it is in Hall’s International Law, 5th ed. p. 259, where it is said: “Besides, though the absence of competent authority is the test of piracy, its essence consists in the pursuit of private, as contrasted with public, ends. Primarily the pirate is a man who satisfies his personal greed or his personal vengeance by robbery or murder in places beyond the jurisdiction of a State. The man who acts with a public object may do like acts to a certain extent, but his moral attitude is different, and the acts themselves will be kept within well-marked bounds. He is not only not the enemy of the human race, but he is the enemy solely of a particular State.” That I think expresses what I have called the popular or business meaning of the word “pirate"; and I find that several, though not all, of the definitions cited in the note on p. 260 of the same work bear out that idea. No doubt there are definitions which do not embody that idea, but that I think is the common and ordinary meaning; a man who is plundering indiscriminately for his own ends, and not a man who is simply operating against the property of a particular State for a public end, the end of establishing a government, although that act may be illegal and even criminal, and although he may not be acting on behalf of a society which is, to use the expression in Hall on International Law, politically organized. Such an act may be piracy by international law, but it is not, I think, piracy within the meaning of a policy of insurance; because, as I have already said, I think you have to [*792] attach to piracy a popular or business meaning, and I do not think, therefore, that this was a loss by piracy. There is another passage in Hall on International Law, at p. 262, which throws some light upon the matter. Speaking of depredations committed at sea upon the public or private vessels of a State, or descents upon its territory from the sea by persons not acting under the authority of any politically organized community, notwithstanding that the objects of such persons may be professedly political, Hall says that such acts are piratical within the meaning of the term in international law, but he goes on to say this: “Sometimes they are wholly political in their objects and are directed solely against a particular State, with careful avoidance of depredation or attack upon the persons or property of the subjects of other States. In such cases, though the acts done are piratical with reference to the State attacked, they are for practical purposes not piratical with reference to other States, because they neither interfere with nor menace the safety of those States, nor the general good order of the seas. It will be seen presently that the difference between piracy of this kind and piracy in its coarser forms has a bearing upon usage with respect to the exercise of jurisdiction.” I think that “piracy” in a policy of marine insurance means piracy in what is called by Hall its coarser sense. I therefore come to the conclusion that these goods were not lost by piracy. For these reasons I think there must be judgment for the defendants.

 

The plaintiffs appealed.

 

1909. Jan. 27, 28. Scrutton, K.C., and F. D. Mackinnon, for the plaintiffs. There was in this case a loss through “pirates” within the meaning of the policy. “Piracy” is not confined to depredations upon the open sea. It includes depredations committed on land by depredators landing from the sea. In this case the expedition organized by Carvalho started from a point at the mouth of the Amazon, which is so wide there as to be practically an arm of the sea. The voyage for which the goods were insured was from that point to the place of destination upon the river Amazon and tributaries thereof, and some meaning must be given to the [*793] word “pirates” as used in relation to it. “Piracy” is merely robbery on the high seas or any waters within the jurisdiction which belonged to the Lord High Admiral: see the definition of “piracy” given by Sir Charles Hedges, Judge of the Admiralty Court, in Rex v. Dawson (1), and approved of by the Judicial Committee of the Privy Council in Attorney-General of Hong Kong v. Kwok-a-Sing. (2) In a policy which relates to a voyage on a river the word “piracy” must be construed as covering any acts which, if done on the high seas, would constitute piracy: see Boehm v. Combe. (3) In Reg. v. Anderson (4) it was held that the Admiralty jurisdiction extended to a British vessel up the river Garonne, ninety miles from the sea. It is contended that the acts of Carvalho and his associates amounted to piracy jure gentium, an offence which might be dealt with by any nation, although in practice, no doubt, only the nation whose property is attacked would interfere in such cases. But, even if that is not so, the term “piracy,” as used in this policy, cannot be confined to piracy jure gentium. The policy being made in England must be construed according to English law, and the word “piracy,” as used in it, must therefore be taken to include anything that would come within the meaning of that term for the purposes of English law, as to which see Palmer v. Naylor (5) and Nesbitt v. Lushington. (6) For the purposes of this policy a seizure of the goods on water which amounted to a robbery would be piracy. The seizure of these goods amounted to robbery. Those who seized them cannot, under the circumstances, be considered as belligerents, and it would seem that they must have seized the goods either in the capacity of belligerents or of robbers. In Oppenheim’s International Law, vol. ii. p. 86, it is stated to be a customary rule of the law of nations that insurgents can be recognized as a belligerent power, provided they are in possession of a certain part of the territory of the legitimate Government and have set up a government of their own, and conduct their armed contention with the legitimate Government according to the laws and usages of war. None of those conditions were

 

(1) (1696) 13 St. Tr. 451.

 

(2) (1873) L. R. 5 P. C. 179.

 

(3) (1813) 2 M. & S. 172.

 

(4) L. R. 1 C. C. 161.

 

(5) (1854) 10 Ex. 382.

 

(6) (1792) 4 T. R. 783. [*794]

 

fulfilled here. At the time when the seizure took place, those who seized the goods were not in possession of any part of Bolivian territory; they had not set up a government of their own; and they could not be said to be conducting their contention with the Bolivian Government in accordance with the laws and usages of war. They had not been recognized as belligerents by any power. They were mere filibusters. In Hall on International Law, 5th ed. p. 262, it is said that descents upon the territory of a State from the sea by persons not acting under the authority of any politically organized community are piratical, although the object of those persons maybe professedly political. Here the acts of Carvalho and his confederates were not done by the authority of any politically organized community. If the seizure in this case does not come within the term “piracy” as used in this policy, it comes within the general words “all other perils, losses, and misfortunes,” &c., which must be construed as covering anything ejusdem generis with the specific risks enumerated, and therefore anything ejusdem generis with piracy. [They also cited Rex v. Allen (1); In re Tivnan (2); Dean v. Hornby (3); Thames and Mersey Marine Insurance Co. v. Hamilton, Fraser & Co. (4)]

 

J. A. Hamilton, K.C., and Leck, for the defendants. By the terms of the policy, unless the seizure of these goods amounted to piracy, the defendants are not liable. It is not sufficient to say that the acts done were similar to piracy, because the insurance is “warranted free of capture, seizure, and detention, …. piracy excepted"; and therefore, unless the seizure amounts to piracy, it does not come within the policy. Matters which are excluded by the warranted free clause cannot be brought within the operation of the policy under the general words “all other perils, losses,” &c. So it is irrelevant to consider whether the acts in question resemble piracy. The question therefore is whether they amount to piracy. Pickford J. was right in saying that what had to be considered was the meaning of “pirates” in the policy. But, indirectly, the consideration of the general or any particular

 

(1) (1837) 1 Moo. C. C. 494.

 

(2) (1864) 5 B. & S. 645.

 

(3) (1854) 3 E. & B. 180.

 

(4) (1887) 12 App. Cas. 484, at p. 494. [*795]

 

meaning of the term “piracy” for other purposes may assist in determining the meaning of that term in the policy. To call the acts here in question from any point of view “piracy” appears to be fantastic. They want certain essential characteristics of piracy. It is a characteristic of a pirate that he should be hostis humani generis: see definition of a pirate by Lord Coke, 3 Inst. 113. In Palmer v. Naylor (1) it was not really held that the acts done by the coolies in seizing the ship were actual piracy, but that they were ejusdem generis therewith; but on the facts it might have been said that the coolies were acting as hostes humani generis, for they by open violence seized a ship, and assumed the navigation of her upon the high seas, and were ready to defend themselves against all authority for the purpose of escape. Throughout all the cases in which acts have been held to be piracy the underlying test has been that for the time the actors were criminals at war with society in general. Those who seized these goods cannot be said to have been at war with society in general. They may be called rebels or insurgents, offenders against their own Government, which was at peace with Bolivia, or against the Bolivian Government, but not enemies of the human race. Again, it is another characteristic of piracy that it is an exception from the general rule by which the jurisdiction of Governments is confined to acts done within their respective territories, and is an offence repressible by and cognizable in the Courts of any country, because all nations are interested in its suppression. It cannot seriously be suggested that the acts in question would be cognizable as piracy in an English Court. Again, it is above all things essential to the character of a pirate that he should be an indiscriminate plunderer for his own benefit. There is nothing in piracy of a political character. Rioters or insurgents committing acts of violence on some political ground against a particular Government are not pirates. The persons who seized these goods were acting in the character of belligerents, carrying on war, on a very small scale it is true, against the Bolivian Government in a remote and ill-organized territory of that Government, for the purpose of maintaining, or at any rate re-establishing,

 

(1) 10 Ex. 382. [*796]

 

the independent republic of El Acre. The case was rather that of a “civil commotion” than of piracy. Again, it is a characteristic of piracy that it should be committed on the high seas or should start from the high seas. The term cannot by any stretch of language be applied to what was done, not on the main stream of the Amazon, but on a tributary of a tributary of that river, at a place more than a thousand miles inland. In Hall’s International Law, 5th ed. p. 257, it is said that acts of piracy must be done under circumstances which render it impossible for any State to be held responsible for them. That cannot be said to have been the case here. The Brazilian Government were responsible for the suppression of an expedition starting from their territory for the purpose of committing such acts.

 

F. D. Mackinnon, in reply.

 

VAUGHAN WILLIAMS L.J.In my opinion this appeal fails. I adopt what Pickford J. says as to the meaning of “piracy” in the following passage of his judgment: “I do not think that can be better expressed than it is in Hall’s International Law, 5th ed. p. 259, where it is said: ‘Besides, though the absence of competent authority is the test of piracy, its essence consists in the pursuit of private as contrasted with public ends. Primarily the pirate is a man who satisfies his personal greed or his personal vengeance by robbery or murder in places beyond the jurisdiction of a State. The man who acts with a public object may do like acts to a certain extent, but his moral attitude is different, and the acts themselves will be kept within well-marked bounds. He is not only not the enemy of the human race, but he is the enemy solely of a particular State.’ That I think expresses what I have called the popular or business meaning of the word ‘pirate,’ and I find that several, though not all, of the definitions cited in the note on p. 260 of the same work bear out that idea. No doubt there are definitions which do not embody that idea, but that I think is the common and ordinary meaning; a man who is plundering indiscriminately for his own ends, and not a man who is simply operating against the property of a particular State for a public end, the end of [*797] establishing a government, although that act may be illegal and even criminal, and although he may not be acting on behalf of a society which is, to use the expression in Hall on International Law, politically organized. Such an act may be piracy by international law, but it is not, I think, piracy within the meaning of a policy of insurance; because, as I have already said, I think you have to attach to ‘piracy’ a popular or business meaning, and I do not think, therefore, that this was a loss by piracy.” I adopt that passage as the basis of my judgment.

 

It was said by the plaintiffs that the learned judge has given no specific definition of what he held to be the meaning of “piracy” in this particular policy. I do not agree. I think that in the words which I have already read the learned judge has given a most plain definition, both by affirmative words and by words of exclusion. He expressly disclaimed deciding what was the meaning of piracy in international law. He referred to the particular policy and said that the word “piracy,” as used there, meant piracy in a popular or business sense, and then stated what he considered that to be. As far as the facts were concerned, if that was the true meaning, it was for the learned judge to construe the document and find the facts, and then decide whether the facts so found came within the definition which as a matter of law he had given. If his definition was right, the facts in my opinion did not constitute piracy within it. In this case the facts were not really in dispute at all.

 

Having said that, I ought now to say a few words on the policy itself. The words of the policy which describe the risks insured against are these: “And touching the adventures and perils which the company is made liable unto or is intended to be made liable unto by this assurance, they are 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 of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this assurance or any part thereof.” The enumeration of risks which I have read [*798] includes the word “pirates.” The first contention of the plaintiffs was that their loss was covered by the word “pirates.” I think it was not so covered for the reasons already given. But then it was said that, even if the facts did not amount to piracy, strictly speaking, yet the general words “all other perils, losses, and misfortunes,” &c., so plainly included matters which, though not piracy, were matters ejusdem generis therewith, that we ought to say that the loss of the plaintiffs was covered by the policy. As to that, there is this difficulty. The policy contains a warranty clause in the following terms: “Warranted free of capture, seizure, and detention, and the consequences thereof, or any attempt thereat, piracy excepted, and also from all consequences of riots, civil commotions, hostilities, or warlike operations, whether before or after declaration of war.” It seems to me that, although piracy is excepted from the warranty, that clause shews that it is piracy only, and not things like piracy, which is excluded from it. I say this because there are several matters, some of them being like piracy, which are left part of the subject-matter of the warranty, such as riots, civil commotions, hostilities, or warlike operations. Under those circumstances I think it is impossible for the plaintiffs to rely on the ejusdem generis doctrine as helping them, because amongst the things which are left within the warranty clause are “riots” and “civil commotions,” which are an extremely close description of the very events which have taken place in this case, and which were prima facie not piracy, but matters ejusdem generis. It is not admissible to bring in under the general words, as being ejusdem generis with piracy, things of the description excluded by the warranty.

 

Pickford J. has decided this case, expressly leaving out of determination all definitions of piracy for purposes of either international or English municipal law. He has decided the case merely on the meaning of the word “piracy” in this particular policy. I wish, however, to say for myself, though we have not got to decide that question, in case of any difficulty hereafter as to the meaning of the judgment of Pickford J. or of that of the Court of Appeal, that in my opinion there is no pretence for calling what in this case had happened on the borders of Brazil and Bolivia piracy. In the first place, I do [*799] not think that the place where these events happened, which was not on the Amazon where it ran into the sea, but on a branch river running into another branch river of the Amazon, was a place where a piracy could be committed. After all, this was a policy of marine insurance, and the loss sought to be covered was alleged to be loss by piracy, or something ejusdem generis. Whatever the definition of piracy may be, in my opinion piracy is a maritime offence, and what took place on this river, running partly in Brazil and partly in Bolivia, far up country, did not take place on the ocean at all. That distant place was not the theatre on which piracy could be committed. It is a region which cannot be said to be, like the ocean, under the jurisdiction of no particular power. It was under the jurisdiction of either Brazil or Bolivia. That part of the river is not the highway of the world, where ships of all nations can go protected only by the law of nations. It is a place where, if any ships go, they go, not on the sea, but on a river running in occupied territory which is under the government of a specific nation which has jurisdiction there. I wish to add one word in relation to the distinction between piracy jure gentium and piracy by municipal law. Whatever other limitation there might be in this policy, it could, in my opinion, only extend to piracy jure gentium, and not to robbery on a river which at that point had been running through land for a long distance and had to run for a further distance, and both banks of which there belonged to Bolivia. In my opinion the judgment of Pickford J. was quite correct, and this appeal must be dismissed.

 

FARWELL L.J.I also am of opinion that the conclusion arrived at by Pickford J. is correct. I desire to express no opinion upon the point with which my brother Vaughan Williams has dealt in the last part of his judgment, namely, whether the acts in question were piracy in the abstract. I neither dissent from nor assent to what the Lord Justice has said on that subject. If it had been necessary to decide that question for the purposes of the present case, I should have desired to consider the matter further. I think that the question which we have to consider here is whether in this policy the meaning of the word “piracy,” contrasted [*800] as it is with the words “riots, civil commotions, hostilities, and warlike operations, whether before or after declaration of war,” can possibly be extended so as to comprehend within it such acts and misdeeds as the learned judge has found to have taken place in this case on the borders of Brazil and Bolivia. It is plain, when one considers this question, that, as regards some acts, “piracy” and some of the matters which would come under terms contained in the warranted free clause run upon lines very close to one another; but it appears to me that those who entered into this policy have drawn a hard and fast line in that clause by saying that, though piracy, generally speaking, is one of the risks insured against, the insurers are to be exempted from liability in respect of certain named things. This entirely answers the argument for the plaintiffs based upon the general words “all other perils,” which are by r. 12 of the rules for the construction of policies contained in the First Schedule to the Marine Insurance Act, 1906, declared to include only perils similar in kind to the perils specifically mentioned in the policy. It is impossible under those words to include in the category of perils insured against, as being ejusdem generis with a peril specifically mentioned as the subject-matter of insurance, acts or things which are actually specified in the document as included in the opposite category, namely, that of risks which are excluded from the insurance. That being so, the question remains whether the acts of those who seized the goods insured in this case do or do not come within one or other of the heads mentioned in the warranted free clause, namely, “riots, civil commotions, hostilities, or warlike operations, whether before or after declaration of war.” I do not desire to put my judgment in this case on the ground that there was here anything in the nature of war or belligerency in the sense of war between two hostile States. I do not think that it is necessary to do that.

 

The evidence shews that the piece of territory where the acts in question took place, though it had been delimited on paper to Bolivia, was never effectively occupied by the Bolivian Government before 1898, but had been occupied to some extent by settlers, of whom the majority were Brazilians, but some were from Bolivia. When the Bolivian troops advanced to the spot, [*801] the Brazilian settlers appear to have retired into their own country, and endeavoured by their action thence to render the position of the Bolivian troops untenable. They did this in Brazil itself by raising what I think may properly be called civil commotions, which were as much rebellion against their own Government, which had made the delimitation between their territory and that of the Bolivian Government, as against the latter Government. This is very much like the commencement of those intestine troubles which sometimes lead to a civil war. Mr. Mountague Bernard in his “Historical Account of the Neutrality of Great Britain during the American Civil War,” p. 91, says in a note in which he sums up the effect of certain decisions in the American Courts: “A civil war …. is never formally declared: it becomes such by its accidents – the number, power, and organization of the persons who originate, and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents and the contest as a war.” Before the point is reached at which a state of civil war can be said to exist, there are, as the author points out, various stages. First there is, possibly, a riot, and this may be followed by what may be described as “civil commotion.” I think this was the stage at which affairs had arrived in the present case. If the adventure of those who seized the goods had been more successful, it might have developed into a civil war. But, being what it was, I think that it may properly be described as a “civil commotion,” and therefore comes within the express exception in the warranted free clause. For these reasons I agree that the appeal should be dismissed.

 

KENNEDY L.J.In this case the learned judge was in the position of both judge and jury, and had to decide all questions which might arise, whether of law or fact. Having heard the arguments which have been addressed to us, I cannot find any ground for saying that in the conclusion at which he arrived he was wrong either in law or in fact. The policy sued upon [*802] was a policy of insurance upon goods and merchandise shipped upon a vessel called the Labrea for carriage from Para at the mouth of the Amazon to Puerto Alonzo and (or) other places on the river Acre and (or) in that district. It is on the face of it, having regard to the place of departure and the place of destination, what I may call a “riverine” policy, upon goods which were to be carried, not upon the sea, but upon a river. Para, the port of departure, is at the mouth of the Amazon, and, though the estuary, where the river joins the sea some way further up, and the river itself for a long distance inland are of great width, the river being one of the largest in the world, those who accepted the insurance in this case must be taken to have known that this was a riverine policy, and that none of the transit was to be upon the high seas, the destination of the vessel being a place situated far inland upon a tributary of a tributary of the river. The word upon which this case turns is “piracy.” The view which Pickford J. appears to have been disposed to take, though he refrained from giving any decision upon the point, and which to the best of my judgment is correct, is that there might be a loss by “piracy” within the meaning of such a policy as that in question, though that loss was not upon the open sea or within the jurisdiction of the Court of Admiralty. I doubt whether the insurance company who entered into this policy could be heard to say that they meant by that word something which could not possibly happen during the voyage in reference to which the policy was effected. The authorities shew that the word “piracy” is one capable of various shades of meaning, and that, even when used strictly as a legal term, it may be held to cover different subject-matters according as it is considered from the point of view of international or that of municipal lawyers. It seems to me that in the case of a policy like this it ought, if possible, to be construed in the sense which would give it a meaning applicable to the insurance effected by the policy. I do not doubt the general correctness, according to the existing authorities, of the definition given by the late Mr. Carver in s. 94 of his valuable work on Carriage of Goods by Sea, 4th ed. p. 117, where he says: “Piracy is forcible robbery at sea, whether committed by marauders from outside the ship or [*803] by mariners or passengers within it. The essential element is that they violently dispossess the master, and afterwards carry away the ship itself, or any of the goods, with a felonious intent.” In the case, however, of this policy, so far as their intention went, the parties could not have meant by the term “piracy” something taking place in the open sea, because that meaning would be inapplicable to the particular voyage; and I am disposed to think that there may be “piracy” in such a locality as that of this voyage.

 

The question remains whether what occurred in this case was “piracy” in any sense of that term. In dealing with that question a judge sitting without a jury must direct himself as to the meaning of the term “piracy” in the particular contract upon which the action is brought. In my opinion Pickford J. was right in holding that, so far as the matter is one of legal construction, the term “piracy” must be regarded as having been used in a business document like this policy of insurance in the sense in which business men would generally understand it; and I think that, from that point of view, he was right in defining “pirates” as being those who plunder indiscriminately for their own gain, not persons who operate solely against the property of a particular Government for such objects as those for which the persons who seized the goods insured were operating against the Government of Bolivia in the present case. If there had been a jury, I am not prepared to say that the learned judge would have been wrong if, in order to ascertain the business meaning of the term “piracy” as used in a business document like this policy, he had put questions to the jury as to its meaning; for though, of course, it is, as a rule, for the judge to construe a document, it is in the case of a mercantile document sometimes properly within the province of a jury, where there is any evidence that in a particular line of business a term has a special meaning, to assist the judge by a finding as to its meaning. The learned judge in this case, sitting without a jury, has asked himself what “piracy” meant in this policy, and he has given it a meaning which clearly does not bring that which happened within the meaning of the term. To my mind the term “piracy” is inapplicable to the acts of the persons who [*804] seized the goods insured in this case, however wrongful or lawless their conduct may have been according to the law of Brazil or Bolivia. They seized these goods not for their private gain, but in furtherance of a political adventure in the latter country. I do not think that any business man would say that those acts constituted “piracy” in the sense in which that term is used in this policy. They are more like the matters mentioned in the warranted free clause, such as riot or civil commotion. I do not think it is necessary to discuss such cases as Palmer v. Naylor (1) and Nesbitt v. Lushington (2), the particular facts in which Mr. Carver has covered in his definition of “piracy,” to which I have referred, by saying that piracy may be committed not only by marauders from outside the ship but also by mariners or passengers within it. The matter may hereafter have to be considered further. I do not think that the acts proved here, in the circumstances, constituted those who did them pirates in such a sense as would give any nation a right to deal with them as being “hostes humani generis.” Assuming that in some connection the term “piracy” may include all that is covered by Mr. Carver’s definition, I am clearly of opinion that, in dealing with this particular case, the learned judge has given the right judgment both as regards the law and the facts.

 

Appeal dismissed.

 

(1) 10 Ex. 382.

 

(2) 4 T. R. 783.