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Bluebook 21st ed.

James Oldham, Insurance Litigation Involving the Zong and Other British Slave Ships,
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Oldham, J. ., Insurance litigation involving the zong and other british slave ships,
1780-1807, 28(3) J. Legal Hist. 299 (2007).

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Oldham, J. (2007). Insurance litigation involving the zong and other british slave
ships, 1780-1807. Journal of Legal History, 28(3), 299-318.

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James Oldham, "Insurance Litigation Involving the Zong and Other British Slave Ships,
1780-1807," Journal of Legal History 28, no. 3 (December 2007): 299-318

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James Oldham, "Insurance Litigation Involving the Zong and Other British Slave Ships,
1780-1807" (2007) 28:3 J Leg Hist 299.

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299-318. HeinOnline.

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James Oldham, 'Insurance Litigation Involving the Zong and Other British Slave Ships,
1780-1807' (2007) 28 J Legal Hist 299

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 Insurance Litigation Involving the Zong and
Other British Slave Ships, 1780-1807

JAMES OLDHAM

The infamous Zong case played an instrumental part in the abolition

movement of the late eighteenth and early nineteenth centuries, and it is
well known to historians of the slave trade. Not so well known, however,
are the characteristicsand practices of insuring slave cargo. Also the full
story of the Zong incident and the subsequent litigation in the court of
King's Bench has never been told. This articlefirst explains the manner in
which the standard Lloyd's marine insurance policy was understood by
ship owners and merchants. Special adaptationsfor slave cargo are then
examined, such as the circumstances in which the loss of slave cargo
would not be covered because not due to 'perilsof the sea', and exclusions
fbr slave insurrections.Finally, the Zong case itself is explored, as enlarged
by scarce and newly-discovered documentary sources. Two surprises
emerge: that the words used in the printed Lloyd's marine insurance
policy did not necessarily mean what they said; and that the legal strategy
employed in the court of King's Bench on behalfof the owners was seriously
flawed.

In the infamous 1783 case of Gregson v Gilbert,1 the plaintiffs sought an insurance
payout for lost cargo (slaves) occasioned by grim events on board the slave ship
Zong (also called the Zorg or Zorgue). The Zong, a Dutch ship, had been captured
as a prize with nearly 250 slaves aboard. The ship was taken to the coast of Africa
to acquire additional slaves, and when this was accomplished, the ship's surgeon,
Luke Collingwood, was designated as captain to take the Zong from the coast of
Africa to Jamaica. The Zong departed Africa in August 1781 with 442 slaves on
board and a crew of 17.2 The ship reached Jamaica, but Captain Collingwood
mistook the landfall for Hispaniola (Haiti/Dominican Republic) and sailed into
open sea. When the mistake was discovered, the water supply on board was
waning, and weather and currents made beating back to Jamaica difficult (Cuba
was nearer, but was in Spanish hands and inhospitable). The first mate, James
Kelsall, swore that there was only enough water for four days, but ten to thirteen
days would be required to regain Jamaica. Dozens of slaves had already died on

'Gregson v Gilbert (1783) 3 Doug. 232.

2The crew of seventeen did not include Captain Collingwood and may not have included the first mate,
James Kelsall.
The Journal of Legal History, Vol. 28, No. 3, December 2007, pp. 299-318
ISSN 0144-0365 print/1744-0564 online
DOI: 10.1080/01440360701698437 . 2007 Taylor & Francis
 LEGAL HISTORY

board when a decision was made to sacrifice additional slaves in order to save the rest,
and, of course, the crew. Accordingly, approximately 130 slaves were thrown
overboard, and the lawsuit in the court of King's Bench was brought by the owners
against the underwriters to collect insurance for the slaves claimed to have been
lost by absolute necessity (valued at £30 per head). The jury verdict was for the
plaintiffs. A motion for a new trial followed, argued in Easter term 1783.
Little has been written about legal issues attending the practice of insuring slave
cargo in British ships in the late eighteenth and early nineteenth centuries. 3 In this
paper I explore three questions: (1) what was the language of the insurance policies
covering slave cargo and to what extent was that language honoured in practice or
responsive to legislative control? (2) what types of losses of slave cargo were
covered by the expressions, 'perils of the sea' and 'insurrection'? (3) from
manuscript records of the Zong case, what can we say about the true facts brought
out during the jury trial, the legal strategy pursued by counsel for the parties, and
the outcome?

INSURANCE POLICIES COVERING SLAVE CARGO

Insurance policies covering slave cargo used the same standard printed forms that
were used for all marine insurance policies in the late eighteenth century. To one
unfamiliar with marine insurance policies from the late eighteenth and early nine-
teenth centuries, it might naturally be assumed that the application of the language
of the policies to specific claims would be a straightforward exercise in contract
interpretation. Such an assumption, however, would be wrong.
Charles Wright and Ernest Fayle in their History of Lloyd's (1928) 4 give an infor-
mative and surprising description of the standardised marine insurance policy that
evolved over the sixteenth to the eighteenth centuries. This description provides
some explanation for the remark by Mr Justice Buller in 1791 that 'a policy of assur-
ance has at all times been considered in courts of law as an absurd and incoherent
instrument: but it is founded on usage, and must be governed and construed by
usage'. 5 Wright and Fayle show how the policy took shape during the 1600s,
3
Brief passages can be found in the leading treatises on insurance, e.g. J.A. Park, A System of the Law in
Marine Insurances, London, 1787, 62-63; S. Marshall, A Treatise on the Law of Insurance, 1st American
ed., Boston, 1805, 134, 594-595 (from the London ed., 1802). Useful recent discussions include Tim
Armstrong, 'Slavery, Insurance and Sacrifice in the Black Atlantic', in B. Klein and G. Mackenthun,
eds., Sea Changes: historicizing the ocean, London, 2003, ch.9; Ian Baucom, Specters of the Atlantic:
finance capital, slavery, and the philosophy of history, Durham, NC, 2005, 106-112, 135-140; Jay
Coughtry, The Notorious Triangle: Rhode Island and the African slave trade 1700-1807, Philadelphia,
41981, 90- 102.
Charles Wright and C. Ernest Fayle, A History of Lloyd's from the Foundingof Lloyd's Coffee House to the
Present
5 Day, London, 1928.
Brough v Whitmore (1791) 4 TR 206, at 210. Chief Justice Kenyon stated that when he sat as the trial judge
in the case, he 'had nothing to guide my judgment on the construction of this instrument but the words of the
policy; and when it was stated that "provisions" were included in the word "furniture", I confess I was
somewhat at a loss to know to what extent the underwriters were liable on words so indefinite as these
which are used', ibid., at 208. The court, however, accepted the explanation of one of the special jurors
'that it had been determined in Lord Mansfield's time that they [provisions] were included under the
word "furniture", under which decision the merchants in the City had since acquiesced', ibid., at 207.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

achieving printed form in a policy dated 20 January 1680/81 covering the Golden
Fleece and its cargo from Lisbon to Venice. 6 They state that the printed portion of
the Golden Fleece policy 'is almost exactly identical with a Lloyd's policy of
1779, wanting only the Memorandum - the paragraph beginning "N.B.", at the
foot of the policy'.7 They remark that, 'Exactly how the common form of printed
policy became settled, is one of the riddles of commercial history' - 'It was never
prescribed by law, prior to 1795.'8
The content of the printed Lloyd's policy was revised, but only slightly, in the
process of creating the New Lloyd's Coffee House at the Royal Exchange in the
late 1770s. The standard single-page form was adopted at New Lloyd's on 12
January 1779, and as described by Wright and Fayle:

[s]hort as it is, this form contains a good deal of tautology; blanks that no one
ever dreams of filling up; clauses, superfluous to most insurances, that no one
ever troubles to strike out. It leaves many of the contingencies of modern com-
merce wholly unprovided for; yet purports to give assurance against risks that
are now uninsurable, or the subject of special contracts. These defects and omis-
sions are made good by additional clauses, written, stamped, or gummed on the
policy, which explain, amplify, and frequently contradict the terms of the policy
itself. These additional clauses are often printed and gummed on in batches,
including many that are entirely irrelevant to the particular transaction in
question. 9

The standardised language describing the risks covered by the underwriters was as
follows:

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, Surprisals, Takings at Sea, Arrests, Restraints and Detainments of all
Kings, Princes, and People, of what Nation, Condition or Quality soever, Bar-
ratry 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
Merchandises and Ship, &c., or any Part thereof.' 0

Wright and Fayle explain that the revision of the standard policy in 1779 was con-
servative, with a view 'not to draft an elegant or logical document, but to preserve the
common form already in use'. 11 They quote Sir Douglas Owen's remark that 'If such
a contract were to be drawn up for the first time to-day, it would be put down as the
work of a lunatic endowed with a private sense of humour.' 12 Wright and Fayle

'Wright and Fayle, History of Lloyd's, at 140-142.

'Ibid., at 142.
'Ibid., at 143. The reference to 1795 alludes to the statute 34 Geo. III, c.80. See text following n. 19, below.
"Ibid., at 126.
"Ibid., at 128.
''Ibid., at 131.
12 bid., at 130, quoting D. Owen, Ocean Trade and Shipping, Cambridge, 1914, at 158.
 LEGAL HISTORY

claimed that, despite clumsy drafting, the meaning of the policy 'is clear, because it
has "generations of legal interpretation hanging to almost every word, and almost cer-
tainly to every sentence"'. 3 They added that if the standard language had not been
retained, 'then the leading cases decided on the old form would cease to be
binding precedents, and the moment a dispute arose the whole business of litigation
would begin again' - and, 'for this reason ... the body of the policy has long been
regarded as sacrosanct' 14
Prodded in large measure by the unrelenting abolitionist efforts of Granville
Sharp, 15 parliament in 1788 enacted a bill introduced by Sir William Dolben to regu-
late the African slave trade. 16 Among other things, the 1788 statute provided that it
would thenceforth be unlawful for owners of any ship to insure slave cargo

against any Loss or Damage, save and except the Perils of the Sea, Piracy,
Insurrection or capture by the King's Enemies, Barratry of the Master and
Crew, and Destruction by Fire; and that all and every Policy of Insurance, here-
after made contrary to this Act, shall be, and the same is7 hereby declared to be
null and void, to all Intents and Purposes whatsoever.

As can readily be seen, this is a much narrower range of risks that could be insured
against than the risks enumerated in the standard policy quoted above. The 1788
statute eliminates, for example, the catch-all phrase that was involved in the Zong
case, 'all other Perils, Losses, and Misfortunes that have or shall come to the Detri-
ment or Damage thereof'.
It might have been supposed that after the 1788 statute took effect the printed form
of the policy covering slave ships would be altered to reflect the new restrictions, but
this did not happen - the standard Lloyd's policy continued to be used, unaltered.
Wright and Fayle include in their book, for example, an illustration of the standard
1779 printed form issued on slave cargo in 1794 on the ship Guipuzcoa, travelling
8
from Liverpool to the coast of Africa and onward to Cuba.'
The incompatibility between the standard form that continued to be used and the
1788 statute was not resolved by litigation in the courts, but was dealt with by an
unusual provision within an expansive new statute regulating the slave trade,
adopted in 1794.19 In section ten of the new statute, the provision of Sir William
Dolben's bill from 1788 restricting the risks that could be insured against for slave
cargo was recited, after which the fact was also noted that owners of slave ships
had continued to make insurances in the same general terms 'as are contained in
the common Policies theretofore used in other Insurances on Ships and Goods'
And since 'Doubts have arisen respecting the validity of such Insurances so made
on Cargoes of Slaves', section ten declared that no policy already issued or to be
3
1 1bid., at 131, quoting again Owen, Ocean Trade and Shipping, at 155.
141bid.
15
16See generally F.O. Shyllon, Black Slaves in Britain, London, 1974.
See ibid., at 200-202.
J728 Geo. 111,c.54, s. 12.
8
Wright and Fayle, History of Lloyd's, illustration facing p.148.
1934 Geo. III, c.80.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

issued using the old form would in fact be void, notwithstanding the 'void' declara-
tion in the 1788 statute. The 1794 statute provided, further, 'That under such Policies
of Assurance so made, or to be made, no Loss or Damage shall be hereafter recover-
able on account of the mortality of Slaves by natural Death or ill Treatment, or against
Loss by throwing overboard of Slaves, on any account whatsoever.'

LOSSES TO SLAVE CARGO CAUSED BY PERILS OF THE SEA

In his 1808 Compendium on the Law of Marine Insurances, Alexander Annesley
'2
stated that 'Questions as to losses by perils of the sea have very seldom arisen. 0
The general rule, nevertheless, was
that every accident happening by the force of wind or waves, by thunder and
lightening, by driving against the rocks, or by the stranding of the ship or
any other violence that human prudence could not foresee, nor human strength
resist is to be considered as a peril of the sea, and for such losses the underwriter
is answerable. 2 '
Two years before the Zong case, John Weskett published A Complete Digest of the
Theory, Laws, and Practice of Insurance. Wright and Fayle describe Weskett as a
dour critic of his time - one whose motto was, 'I do well to be angry', and who
described the world around him as distinguished by 'Frivolousness, Ostentation,
and Rapacity'. 22 Weskett nonetheless understood the mercantile world, and his
Digest was widely used. His short paragraph pertaining to slaves reads as follows:
The insurer takes upon him the risques of the loss, capture, and death of slaves,
or any other unavoidable accident to them: but natural death is always under-
stood to be excepted: - by natural death is meant, not only when it happens
by disease or sickness, but also when the captive destroys himself through
despair, which often happens: but when slaves are killed, or thrown into the
sea in order to quell an insurrection on their part, then the insurers must
23
answer.
Marshall in his 1802 insurance treatise observed that despite the illegality in
France and other European countries of insurance upon lives, a rationalisation had
been worked out to allow insurance on slaves. He quoted Valin's explanation that
since it was permitted to insure persons captured 'to the amount of their ransom
against re-capture, or any death except natural death', it had become a practice by
20
A. Annesley, Compendium on the Law of Marine Insurances,Bottomry, Insurance on Lives, and of Insur-
ance Against Fire, London, 1808, 68.
21Ibid. (footnote omitted).
22Wright and Fayle, Histoty of Lloyd's, 161, 159. The authors observe that Weskett' s words 'have a familiar

ring' as 'faults which more modern critics have censured as peculiar to our own era', ibid. Needless to say,
the same would be said by some to be true of the Anglo-American world of the twenty-first century.
23j. Weskett, A Complete Digest of the Theory, Laws, and Practiceof Insurance, London, 1781, 525, citing

a seventeenth-century French work, Valin's Conmentaries(Nouveau commentaire sur l'ordonnancede la

marine du mois d'Aoit 1681, La Rochelle, 1760).
 LEGAL HISTORY

analogy to insure 'negro captives', bought in Africa, against loss 'by the perils of the
sea, or by death; but the case of natural death is always excepted'. 24
One issue that was litigated, accordingly, was what constituted 'mortality' or
'natural death' when a loss of insured slave cargo occurred. The Zong case was
one such example, as discussed below. Another example was the case of Tatham v
Hodgson, a 1796 decision of the court of King's Bench in which the claim was
made that slave deaths were not 'natural' when caused by extraordinary delays in
25
the insured ship's passage.
Travelling from the coast of Africa to Grenada, the slave ship in Tatham encoun-
tered heavy weather and, according to the declaration, a ground swell caused the
ship to strike bottom several times, rendering it leaky with an ineffective rudder. Con-
sequently, a journey that normally took from six to nine weeks occupied over six
months. The captain put in at Barbados instead of going on to Grenada in order to pre-
serve the surviving slaves, 'who were in a perilous condition'. Only forty of the 168
slaves initially on board survived; the others died in the voyage because of the hardships
from the delay, and 'by reason of which the slaves were obliged to be fed with Indian
Corn, which was an improper food for them'. It was claimed, nevertheless, that 'All
possible care had been taken to provision the ship as well with European provisions
26
as with such as the coast furnished for the use of the slaves.'
The trial judge, Common Pleas Justice John Heath, was of the opinion that no
recovery was possible for the value of the slaves since they died natural deaths and
thus fell within the statutory prohibition of 34 Geo. III, c. 80. On the motion for a
new trial, the single issue was 'whether the loss which had happened, as far as
respected the slaves could be attributed to the perils of the sea within the meaning
of the Act'. 2 7 Counsel for the underwriters, Edward Law (who later became Lord
Ellenborough), argued that 'the intention of the Legislature was that mortality by
natural death should not be insured against by whatsoever means that mortality
was induced; whether by death or badness of food, length of confinement, despon-
dency, or the like' - 'That natural death was meant to be contradistinguished from
violent death', and 'the whole policy of the Act would be defeated if such a loss
28
could be recovered in another shape, under an insurance of the perils of the sea.'
Counsel for the owners argued that 'the misfortune had arisen from no careless-
ness or inhumanity of the captain in not laying in sufficient provisions for the voyage',
but 'The length of the voyage therefore arising from the perils of the sea was the
genuine source to which the loss was attributable; in consequence of that the slaves
were actually starved to death, which can in no sense be considered as a natural
death.' 29 Lord Kenyon, chief justice of the court of King's Bench, stated that the
24
Marshall, Law of Insurance, 133. Jay Coughtry notes that in 1770, the London agents of the principal
owner of the slave ship Sultan wrote to say that 'they had attempted to secure coverage against slave mor-
tality from their underwriters for some time, but were told that "'not one of them [would] undertake that
risque at any rate"', Coughtry, The Notorious Triangle, 99.
25(1796) 6 TR 656.
26Ibid., at 657.
27
Ibid., at 658.
28
Ibid.
29
1bid.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

Act in question was 'founded in humanity' and he said that the Act would be effec-
tively repealed if owners were allowed to recover for the loss of slaves occasioned by
a captain's decision to take 'an insufficient quantity of provisions'. Mr Justice Grose
agreed, observing that otherwise captains of slave ships would be encouraged 'to take
an insufficient quantity of food for the sustenance of their slaves'. 30 Mr Justice
Lawrence remarked that he did not know 'that it was ever decided that a loss
arising from a mistake of the captain was a loss within the perils of the sea', but in
the case before the court, plaintiffs could not recover 'without saying that the
slaves did not die natural deaths'. Lawrence said that 'If they had died of fevers or
other illness occasioned by the length of the voyage, the plaintiffs certainly could
not have recovered', and that 'the length of the voyage occasioned the want of pro-
visions and that occasioned the illness of which they 31
died: but that is a natural
death within the meaning of this Act of Parliament.'
Another 1796 'risk of the sea' case further defined the circumstances under which,
and at what value, insurance payments for slave cargo could be claimed. In Rohl v
Parr, also decided by the King's Bench, the ship Zumbee was insured for a trip
from the island of St Bartholomew 32 to the river Gombroon on the coast of Africa
and back to the West Indies.3 3 The policy included the memorandum that the under-
writers were to be 'free from average, under ten per cent. for loss in boats, and from
five per cent. for loss from insurrection' 34 The ship arrived safely on the coast of
Africa on 1 September 1792 and began to trade slave cargo for goods. During
September, however, there was an insurrection of the slaves on board - seven of
the forty-nine slaves on board were killed, and an eighth died by accident from a
fall. Thereafter, as the ship prepared for its return journey, it was discovered that
there was crippling worm damage to the ship's bottom.35 After barely reaching
Cape Coast, the ship was condemned. The owners sought recovery from the under-
writers for a partial loss due to the insurrection (above five per cent), and for a
total loss arising from the perils of the sea.
At the trial, the special jury found that the damage done by the worms was not a
loss within the term 'perils of the sea', and that the loss of the slaves during the insur-
rection was to be measured at the time when the loss occurred (as opposed to the later

3t
Ibid., at 659. Mr Justice Grose's reasoning might be questioned, but in the end is persuasive. Both he and
Kenyon said that if they were to conclude that starvation due to the length of a voyage caused by bad
weather was not a natural death, the objectives of the 1788 and 1794 statutes would be undermined.
Since mortality (natural death) was not covered by the policy, there was an incentive to keep slave
cargo alive and to have adequate provisions on board. If coverage had been allowed in Tatham, there
would have been a perverse incentive to go short on provisions because even if the voyage were to be
extended by bad weather and slaves were to die, insurance payments would cover them and the owners
would not suffer. This assumes, of course, either that the underwriters would willingly pay or that the trans-
action costs of litigation to force the underwriters to pay would not be prohibitive.
31
Ibid.
32Commonly known today as St Barts.
13(1796) 1 Esp. 445.
34
Ibid. The term 'average', as used in marine insurance policies, can be loosely equated with 'loss'.
3 Cockrell and Green state that in slavery voyages in the late eighteenth century, underwriters ordinarily
required that 'the assured doth hereby agree to warrant the ship sheathed (copper bottomed)', H.A.L Cockrell
and Edwin Green, The British Insurance Business, London, 1976, 19. This warranty does not appear in the
1794 policy covering slave cargo referred to earlier (text preceding n. 18, above).
 LEGAL HISTORY

time of condemnation at Cape Coast), and measured thus, the loss exceeded five per
cent, and the owners were entitled to a recovery. The printed report of the case states
that in deciding when the five per cent calculation should be made, the opinion of the
special jury was taken, and a Mr Vaux, 'an eminent underwriter', gave 36 his opinion
that the calculation was to be made at the time when the loss happened.
The influence of Mr Vaux is shown more clearly in a manuscript report of Rohl v
Parrby Vicary Gibbs. 37 Mr Vaux is there described as a 'very intelligent Merchant',
and after being examined on the question of the loss by worm damage, Vaux 'proved
that he had known many losses of this sort, but that the underwriters had invariably
refused to pay, not considering it a loss within the Policy'. 38 The report then states:
'Lord Kenyon at first seemed inclined to a different opinion: but upon that evidence
and the declaration of the Jury (which was Special) his Lordship concurred that the
Plaintiff had a verdict only for the loss of some slaves by Insurrection.' There is
also a postscript in which Gibbs posed the following hypothetical:

How far is this doctrine to be carried? Suppose a ship in perfect repair is laden at
Jamaica, waits some months for convoy, sails without any apparent defect, is
found leaking at sea, puts into another island, unloads, & appears to have
been rendered incapable of proceeding on her voyage by reason of the injury
which she received from worms in port. Suppose an insurance at & from
Jamaica. The risk commenced at a time when she was clearly seaworthy, but
the loss was occasioned by a peril which this case decides not to be within
the Policy, & therefore the assured cannot recover. Suppose a similar insurance
on goods for the same voyage. Their loss would be occasioned by the same
cause, & reasoning from this case, there would be the same objection to reco-
39
vering it from the underwriters.

The result in Rohl accords with the result in Tatham - that losses caused indirectly by
natural phenomena such as heavy weather in the Middle Passage or worms in African
40
rivers do not fall within 'perils of the sea' in the standard policy.
The standard Lloyd's policy, however, was not restricted to *perils of the sea' and
'insurrection'; it included the catch-all phrase, '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, &c, or any Part thereof'. 4 1 Laurence Baily
observed at the start of his 1860 book on perils of the sea that, 'In some of the
legal decisions a distinction is drawn between "perils of the sea" strictly, and perils
of the same nature, i.e. perils which come very near to but are not precisely "perils

3'1 Esp., at 446.

37
Gibbs was made KC in 1794, became solicitor-general in 1805, attorney-general in 1807, and a justice of
the Common Pleas in 1812, see A.W.B. Simpson, ed., Biographical Dictionar' of the Common Law,
London, 1984, 203.
38The report is found in Middle Temple Library (MT) Gibbs MSS, Cases at nisi prius (1802-12), 128-129.
39
Ibid., at 129- 130 (emphasis original).
4°The trial in Rohl happened on 27 February 1796. The trial in Tatham was during the previous summer at
the Lancaster assizes, but the motion for a new trial was heard in London on 30 April 1796. No reference
appears in the report of Tatham to the Rohl case, and no reference to Tathamn appears in the reports of Rohl.
4'See text at n. 10, above.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

of the sea", - perils, that is, which come under what are called the general words in
the policy, viz, "all other perils and dangers".' 42 He then stated that in his book, with
the exception of his introductory chapter, 'this distinction is disregarded ... for it is a
technical distinction which does not affect the liability of underwriters, but simply the
form in which that liability is to be enforced'. 4 3
Baily itemised numerous cases in which underwriters had been held liable for loss
under the standard policy language. 44 This list was followed by a group of cases in
which it had been found that the damage sustained 'was not caused by "perils of
the sea or all other perils and dangers"; and it will be seen that in no one of these
is a peril of the sea the active cause of the loss'. 4 5 The latter list included Rohl v
Parr which involved what Baily described as damage by worms 'sustained in the
ordinary course of the vessel's voyage', which was, 'by custom, excluded from the
policy'.46 Baily added, however, that 'there are no good grounds for assuming that
the underwriter would not be liable for damage done by worms when that damage
results from extraordinary circumstances'. 4 7 Yet the voyage in Tatham v
Hodgson 48 was not viewed by Baily as having 'extraordinary circumstances'; the
case is described simply as one in which the underwriters were not liable for 'the
death of slaves, caused by want of water and provisions owing to "perils of
the sea" having prolonged the voyage'. 49 And, 'A fortiori, when the want of water
and provisions resulted from a mistake in reckoning made50 by the master of the
ship', there would be no recovery, citing Gregson v Gilbert.

LOSS BY INSURRECTION
We have seen that the types of losses covered under the Lloyd's policy typically
were those caused directly, 'actively', by some extraordinary event - customarily
violent incidents of weather, war, piracy, etc. Ordinary loss to perishable cargo
would not be covered, as, in the case of animal or human cargo, loss by
.common mortality'.
Unspoken economic analysis was no doubt at work here. It was necessary for the
owners to decide what risks it made sense to insure against without incurring premium
costs that would eliminate any realistic chance for a profitable trading voyage. Insur-
ance could undoubtedly have been written, at a cost, that would protect against loss to
cargo due to delays attributable to non-violent weather, such as atypical winds and
currents or unnatural calms. But in addition to the cost of any such policies, it
would be difficult to prove the cumulative effects of such events and the exact
42
L.R. Baily, Perilsof the Sea, and Their Effects on Policiesof Insurance,PracticallyConsidered,London,
41860, 2.
3Ibid.
44
Ibid., app. 1, 187.
45
Ibid., at 195 (emphasis added).
46
Ibid., at 196.
47Ibid., at 197.
4
8Text at n.25, above, and following.
49
Baily, Perils of the Sea, at 197-198.
50
Ibid.
 LEGAL HISTORY

cause or causes of loss (for example, whether the leakage in the supply of rum was
caused by the length of voyage or by faulty casks). It was thus customary to insure
only against loss caused directly by predictable events, such as violent storms or
capture. Thus, in the case of livestock, recovery was allowed in two nineteenth-
century cases for the death of horses and cattle resulting from panic during violent
51
storms.
Slave cargo, however, presented the special problem of what to do about the risk
of harm from revolt or insurrection. Typical conditions on slave ships led owners to
fear that trouble was virtually guaranteed, and extensive precautions were often
taken. 52 Sometimes insurrection was wholly excluded from coverage.553 Usually,
however, major loss by insurrection was included, and as Weskett explained, this
was regarded as 'general average':

Ships and merchandizes from England to the coast of Africa, and at and from
thence to our colonies in the West-Indies, &c. are usually insured with the follow-
ing clause in the policy, viz. 'Free from loss or average, by trading in boats, and
also from average occasioned by insurrection of slaves, under 10 per cent.: -
however, we sometimes see variations of this clause. - the average arising
from insurrection is understood to mean general average, and to be borne by
the ship and cargo, &c., not by that of the slaves only, as a particular average
thereon: because the loss or damage (whether to ship, or cargo, or both) which
happens by means of an insurrection, and the endeavors used in quelling the
same, arises from the whole interest, together with the lives of the crew, being
in danger, and in contemplation to be preserved, in such manner as the emergency
54
may admit of.

The ten per cent clause suggests that 'a certain level is expected, both on the coast
of Africa and on board ship'. 55 Jay Coughtry, in his study of the Bristol, Rhode Island,
slavers, notes that, 'Although only a fraction of slave and crew deaths during the
middle passage occurred as a result of slave uprisings, the specter of slave revolt ter-
rified Rhode Island African merchants to a degree unmatched even by proven killers
like the bloody flux.' 56 Surviving records show, however, that, 'Rhode Island vessels
experienced only seventeen slave revolts from 1730 to 1807, one every four and a half
years, or about one every fifty-five voyages', but, by contrast, 'British slavers sus-
57
tained a revolt about once every two years.'

5'See
52
Lawrence v Aberdein (1821) 5 B. & Aid. 107: Gabay v Llovd (1825) 3 B. & C. 793.
Emma Christopher gives a vivid summary in her recent book, Slave Ships, Sailors and their Captive
Cargoes, 1730-1807, Cambridge, 2006, 183, citing, among other examples, the 1784 voyage out of Liver-
cool of the Comte du Nord with "1 10 leg irons, 110 pairs of handcuffs" plus iron "collars, chains, etc."'
3See, for example, Christopher's reference to the insurance written on the Fly in 1788, ibid., n.64.
54
Weskett, Digest, 11. Some policies covered loss by insurrection above five per cent, as in Rohl v Parr,text
at n.34, above; also the policy on the Guipuicoa, reproduced by Wright and Fayle in their History of
Lloyd's,
55 text at n.18, above.
Armstrong, 'Slavery, Insurance, and Sacrifice', 171.
56
Coughtry, Notorious Triangle, 150.
57 1bid., at 151 -152.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

Insurrection was not involved in the Zong case. 58 Two years later, however,
another infamous slave case came before Lord Mansfield and the court of King's
Bench requiring the court to construe an unusual clause covering the slave cargo,
and dealing with mortality and insurrection. In Jones v Schmoll,59 the owners of
the insured ship sued to recover for the loss of slaves arising out of a series of insur-
rections (called 'mutiny' in the policy). The clause in the policy stated that mortality
by natural death was excluded, but mortality by mutiny above ten per cent was
covered. The unusual feature of the clause was that only mortality above ten per
cent was covered - non-fatal injury was not covered. Thus it became necessary to
determine which slaves had been directly killed by the mutiny and which had been
merely injured or had died from other causes.
The report of the case states that there were 225 'prime slaves' on board, that on 3
May an insurrection was attempted and some of the slaves were badly bruised by
having been thrown down the hatchway; subsequently, twelve men and a woman
died of those bruises and from abstinence. Three weeks later, there was a general
insurrection in which 'the crew were forced to fire upon the slaves and attack them
with weapons'. The report described the situation as 'a case of imminent necessity',
with the following consequences:

Several slaves took to the ship's sides, and hung down in the water by the chains
and ropes, some for about a quarter of an hour: three were killed by firing and
three were drowned; the rest were taken in, but they were too far gone to be
recovered: many of them were desperately bruised; many died in consequence
of the wounds they had received from the firing during the mutiny; some from
swallowing salt water; some from chagrin at their disappointment, and from
abstinence; several of fluxes and fevers; in all to the amount of 55, who died
60
during the course of the voyage.

The underwriters paid for nineteen slaves who were killed directly or who died of
wounds directly received in the mutiny. With regard to the rest, Lord Mansfield
said that the question for the jury was 'whether any of those who died by any other
means, except the being fired upon, or in consequence of the wounds and bruises
which they received during the struggle, are within the meaning of that policy'. 61
Mansfield described for the jury four classes of slaves: (1) those who were directly
killed in the affray; (2) those who died of wounds they received from the firing and
other hostilities; (3) those who, in despair, chose to die by fasting or through
58
According to Granville Sharp's 'Minutes taken in Court' (see text preceding n.67, below) (referred to
hereafter as 'Sharp transcript'), Solicitor-General Lee argued that, by throwing the slaves overboard, the
crew avoided the greater evil, for if they had not done so, 'in a few hours there must have been such an
Insurrection all the blacks wou'd have killed all the Whites', Sharp transcript at 52-53. Davenport inter-
rupted to say that there was no such evidence; Lee responded by saying, 'Mr Stubbs said it was to
prevent such rising'. Davenport then said, 'Quite the contrary. I asked the question and he said there
was no insurrection.' The solicitor-general answered that he did not say there was an insurrection,
merely that there might have been one had preventive action not been taken.
59(1785) 1 TR 130 n.(a).
60
Ibid.
61
Ibid., at 130- 131.
 LEGAL HISTORY

despondency; and (4) those who received 'some hurt by the mutiny, but not mortal,
and died afterwards of other causes, as those who swallowed water, jumped over-
board, &c. &c.'.62 Mansfield told the jury that the first two classes were covered,
the third class was not, and the fourth class was 'the great point' for the jury to
decide. The printed report of the case indicates that the jury verdict allowed
payment for the first two of these classes but not the third or fourth.

THE ZONG CASE

Largely through the efforts of Granville Sharp, the Zong case became a dramatic
contribution to the abolition movement of the late eighteenth century. Despite its
importance to the abolitionists, the case was unremarkable as a matter of legal doc-
trine or precedent. This was because the facts were so unusual that they were unlikely
to be repeated, and because the motion for a new trial succeeded primarily on non-
substantive grounds. The full transcript of the case 63 nevertheless provokes several
questions of legal process. What accounts for the plaintiffs' trial strategy that left
them vulnerable on the motion for a new trial? What exactly was the basis for the
motion for a new trial? Did the defendants claim that the jury verdict was against
the evidence, and if so, on what basis? How were the facts that were presented to
the jury preserved or known when the motion for a new trial was argued? And,
finally, why was first mate Kelsall's sworn affidavit allowed to be read during the
argument for a motion for a new trial?
The printed report of the argument in Zong case on the motion for a new trial,
Gregson v Gilbert, is in Douglas's Reports, but it did not appear in print until
nearly a half-century after the case was decided. Sylvester Douglas was careful and
thorough, and his reports were much respected. The first edition of his reports com-
prised two volumes only, appearing in 1783. The Zong case, however, appears in
volume three. Volumes three and four of Douglas's reports were published posthu-
mously in 1831 from notes by Douglas and others, edited by Henry Roscoe. Before
that time, the only accounts of the Zong case in print would have been whatever
appeared in the newspapers; 64 descriptions of the case that appeared in insurance
treatises by Park, Marshall, and others; and the chapter and appendix devoted to
the case in Prince Hoare's Memoirs of Granville Sharp. Hoare published the Sharp
memoirs in 1820; the fullest printed account of the case before 1820 was that
given by James Allan Park in his treatise on insurance, first published in 1787.
Park's account runs to a page and a half, quotes part of the declaration, and places
the opinions by Mansfield and Buller in quotation marks. The quoted opinions are
similar, but by no means identical, to those that ultimately appeared in Douglas's
report. Thus Park apparently did not have a copy of Douglas's manuscript notes of
the case. Very likely Park was in court and took the notes himself. He says in the
introduction to his first edition that while he was a student he took most of the
62
Ibid., at 131.
63The full transcript was prepared by the late Martin Dockray. See n.64, below.
'4For example, the account in the Morning Chronicle quoted in Shyllon; see text at n.97, below.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

notes of the deliberations that he describes in his book in cases, as of then unreported,
on reserved questions of law or on motions for new trial.6 5
Two additional manuscript reports of the Zong case are in the Gibbs and Dampier
manuscripts at the Middle Temple Library in London. Except for minor punctuation,
the two reports are identical, but they differ in significant respects from both Park's
and Douglas's versions.6 6 The description in the Gibbs manuscript of the facts of
the Zong case and of arguments of counsel is much more extensive than the presen-
tation in Park's insurance text. Gibbs's version is comparable in its level of detail to
the report that eventually appeared in volume three of Douglas's Reports.
The most extensive report of the Zong case, of course, is Granville Sharp's
'Minutes taken in Court', prepared from the shorthand reporter's verbatim notes of
the proceeding. This transcript has never appeared in print. 67 As already mentioned,
however, Prince Hoare's Memoirs of Granville Sharp contains a chapter and an
appendix devoted to the case as heard by the court of King's Bench in late May
1783. Hoare gave a five-and-a-half page description of the case in which he quoted
from Sharp's own manuscript notes and from the shorthand reporter's 'Minutes
taken in Court'. 68 Hoare also printed letters about the case sent by Sharp in July 69
1783 to the duke of Portland and to the lords commissioners of the Admiralty.
Appendix VIII of Hoare's Memoirs was the account of the case that Sharp prepared
and sent as an enclosure in his letter to the lords of the Admiralty.
The accounts of the Zong case in Hoare's memoirs of Sharp were unofficial and
were prepared as ammunition for Sharp's bombardment of the government to achieve
abolition. According to Hoare:

Besides the letter to the Lords of the Admiralty [Sharp] employed every means
in his power to give the utmost publicity to the circumstances that had hap-
pened, and the arguments that had been employed. He sent an account of the
whole transaction to the newspapers - he handed about a copy of the
minutes (which he had procured in short-hand) of the trial, and of the speeches
on both sides - he was also unwearied in diffusing his powerful and unanswer-
able remarks on the flagrant enormity of the case, which had been so strenu-
ously vindicated; - and perhaps the cause of African freedom may thus
reckon among the most effective instruments of its support, the masterly and
successful arguments of the Solicitor General, in the barbarian triumph
65
j.A. Park, A System of the Law of Marine Insurances, 3rd ed., London, 1796, xv.
66The reports appear in MT Gibbs MSS, Cases in King's Bench, 23 & 24 Geo. III, 33-34, 37-40; MT
Dampier MSS, Cases in the King's Bench, 23 & 24 Geo. III, 32-36. Probably the Dampier version was
copied from the Gibbs version. Vicary Gibbs was called to the bar in February 1783, whereas Henry
Dampier's entry into the profession was not until June 1788.
67A manuscript copy of the shorthand reporter's notes is held by the National Maritime Museum, London,
NMM REC/19. The late Martin Dockray, City University, London, prepared a draft transcription of the
manuscript, which I have edited into final form by re-examining the original manuscript. It is hoped that
it will be possible in due course to publish this transcription, together with other material relating to the
Zong.
68P. Hoare, Memoirs of Granville Sharp, Esq., London, 1820, ch.8 and app.8.
69
Ibid., at 241-244.
 LEGAL HISTORY

upheld on that occasion over reason and human feelings, as well as over the
otherwise enlightened policy of England.7 °
Notwithstanding all that Sharp did to publicise the case, and despite Hoare's sarcasm
about the efforts of the solicitor-general (John Lee) on behalf of the owners of the
Zong, there is little or no evidence that copies of Sharp's transcript of the case
travelled widely, if at all, into the hands of the practising bar.
Nearly all of the above accounts of the Zong case pertained to the motion for a
new trial heard by the court of King's Bench on 21-22 May 1783. What records
survive, if any, of the jury trial on 6 March 1783? An anonymous writer to the
Morning Chronicle said he was giving a first-hand account, though his description
was misleading, giving the impression that first mate James Kelsall testified at the
trial. 7 1 The fact that Lord Mansfield was himself the trial judge seems not to have
been known, or at least that fact went unremarked. Granville Sharp was not aware
of the case until after the trial was over.72 Yet any reader of the 'Minutes taken in
Court' by the shorthand reporter would have perceived the many times when
Mansfield or counsel alluded to Mansfield's role as the trial judge, for example in
the descriptions of Mansfield's instructions to the jury. Given Sharp's anger about
the way Mansfield conducted earlier cases involving slavery, the Somerset case
and R. v Stapylton,7 3 it is surprising that Sharp was silent about Mansfield's having
presided over a jury that rendered a verdict wholly favourable to the owners of the
Zong for the loss of 130-plus slaves at £30 each.
Mansfield, of course, would have taken notes of the trial in his trial notebooks.
Unfortunately, Mansfield's notebook for Hilary term 1783 is missing, 74 and no one
would have been in court taking notes with a view to publication since regular nisi
prius reporting did not begin until the 1790s. 7 5 When the Gregson case came on
for argument on the motion for a new trial on 21 May 1783, Mansfield would have
verbally reported the facts of what happened at trial by referring to his trial notes,
supplementing them as needed from memory. This verbal account by Mansfield
would have become, in turn, the principal source of the factual summaries by Park,
Gibbs and Douglas of what had happened at trial.76
With the benefit of the shorthand reporter's 'Minutes taken in Court', a more
thorough assessment of the Zong case is possible than that permitted by the
7
°Ibid., at 245-246. Hoare's description in the above excerpt of the shorthand notes as 'minutes of the trial'
is inaccurate - the notes were taken of the argument and judgment on the motion for a new trial on 21-22
May,
7 not of the actual jury trial on 6 March.
'See text at nn.97-98, below.
72See Hoare, Memoirs of Granville Sharp, at 236.
73
See generally, Shyllon, Black Slaves; J. Oldham, The Mansfield Manuscriptsand the Growth of English
Law in the Eighteenth Centur, 2 vols., Chapel Hill, 1992, vol.2, 1225-29.
74
See Oldham, Mansfield Manuscripts, vol.1, 163.
75
See generally, J. Oldham, 'Law-Making at Nisi Prius in the Early 1800s', 25 Journal of Legal History
(2004), 222.
76Douglas, in the preface to the first volume of his reports, stated: 'The judgments of the court I could have
wished to give in the words in which they were delivered. But this I often found to be impracticable, as I
neither write short-hand, nor very quickly', I Doug. x. His practice was to work on his case notes at home
while memory was fresh, and to fill gaps to the extent possible by 'confronting a variety of notes taken by
others', ibid.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

abbreviated version in Douglas's reports. Only one witness testified at the trial -
Robert Stubbs, who in 1781 had been dismissed from his position as governor of
Annamboe, an English settlement on the African coast, and who shortly thereafter
was the sole passenger on board the Zong. Stubbs apparently took charge of the
ship in late November 1781 after the captain, Luke Collingwood, grew too sick to
carry on. 77
One feature of the plaintiffs' case at the trial seems odd, in retrospect. The claim
was made in the declaration that the ship was rendered 'foul and leaky' after having
been retarded by 'perils of the sea, contrary winds and currents and other misfor-
tunes' Clearly, this language was drafted in light of the 'catch-all' clause of
Lloyd's standard marine insurance policy. 78 No evidence, however, was presented
at trial to substantiate the alleged 'foul and leaky' condition of the ship. This omis-
sion, it turned out, was fatal.
The declaration would have been drafted by the plaintiffs' solicitors, and when the
barristers were engaged to present the plaintiffs' case at the jury trial, they would have
received as part of their briefs the solicitors' description of the case and the projected
testimony. The barristers (Solicitor-General John Lee and Alan Chambre) would not
have interviewed Stubbs in advance of trial and no doubt would have expected
Stubbs's testimony to corroborate the claims made in the declaration. But neither
Solicitor-General Lee nor Chambre questioned Stubbs about the Zong having
become 'foul and leaky', and Stubbs apparently volunteered nothing to the point.
All of the energy at the trial was devoted to the shocking events that led to the
decision to throw approximately 130 slaves overboard, due to 'misfortunes' (mis-
takes) that allegedly left all on board in a dire situation of necessity without adequate
water or provisions. Stubbs apparently testified emphatically that the circumstances
created the absolute necessity to take drastic action. That testimony need not be
recounted here except to say that counsel for the underwriters (Davenport, Pigot
and Heywood), in argument on the motion for a new trial, pointed out serious incon-
sistencies in Stubbs's account of the event, especially concerning the claim that a
number of slaves were thrown overboard after fresh rainwater came.
Apparently no one noticed the failure to question Stubbs about the physical
condition of the ship. The 'foul and leaky' claim may have been included in the
declaration because of the realisation that mere delay due to winds and currents
would not alone justify a verdict.7 9 Counsel for the owners attempted to gloss over
the absence of specific proof of the 'foul and leaky' condition of the ship by an
analogy to procedures governing indictments, and by claiming that only the
essence of the declaration need be substantiated. This attempt was weak and
ineffective.
There was another fundamental flaw in the declaration. Why did not the plaintiffs
in the declaration acknowledge that the plight of the Zong had been due to mistakes
77
Within days after the Zong regained Jamaica, Collingwood died.
7
SSee text at n.10 and following n. 17, above. The Zong case (1783) was not subject to the later-enacted
restrictions of Sir William Dolben's bill of 1788.
79As Davenport argued, 'many instances have occurred of slaves dying for want of provisions, but no

attempt was ever made to bring such a loss within the policy', 3 Doug., at 629.
 LEGAL HISTORY

made by the captain? The declaration made no suggestion that there had been
mistakes, stating merely that the ship had set out with a reasonable quantity of
water, and was beset by 'contrary winds and currents and other misfortunes'. Yet it
cannot have been supposed that the captain's mistakes would not come out at trial.
In reflecting on this aspect of the declaration, a word is necessary about the law of
negligence that was taking shape in the late eighteenth century, in large measure as an
outgrowth of the liability of common carriers. The owners of the Zong would have
been responsible as private carriers for ordinary care of cargo on board -
'common care', or 'reasonable care' .80 It may have been understood by the mercantile
community that under the standard marine insurance policy the underwriters would
cover any loss caused by the captain's want of 'common care' but not loss caused
by gross negligence. Lee and Chambre argued that 'the underwriters are only dis-
charged by such negligence that would subject the Captain to an action by the
owners';81 that is, by gross negligence, which, they claimed, did not occur.
On the motion for new trial, Davenport did not differentiate between ordinary and
gross negligence, advancing instead the broad claim that the underwriters were not
responsible 'for the Captain's own ignorance or want of skill' 82 He stated further:
'I am perfectly sure it astonished the Court after your Lordship's summing up, that
the Verdict shou'd be found for the plaintiff, for it was stated to the Jury in express
terms that if it was Ignorance, Mistake or Blunder occasion'd it, the Underwriters
were not liable.' 83 Pigot on the same side argued that the owners were responsible
for the captain's 'monstrous' mistake; he asked, rhetorically, 'is that the way that
Men navigate with common Cargoes ... much less with the lives of People - is
this to be tolerated or endured?' 84 And Heywood, also on the same side, stated that
'the want of Skill in a Commander is not a risque which the Underwriters are answer-
able for'.
For the owners, Solicitor-General Lee claimed that 'there was no imputable Neg-
ligence of any sort'. 85 Chambre added that there was nothing criminal in the 'Negli-
gence or Ignorance of the Captain' - the case involved 'one of those unavoidable
accidents which will not discharge the Underwriters'. 86 He claimed that the Zong
was unavoidably distant from shore when the mistake was made, imagining that
the land was Hispaniola and not Jamaica, and that 'Underwriters are not discharged
by every possible mistake in the course of a voyage.' 8 7 He added that, on the facts of
the Zong case, 'there was no instance of criminal inattention to discharge the Under-
writers nor gross negligence to subject the Captain himself to a suit by his
employers' 88

8
()See generally Oldham, Mansfield Manuscripts, vol.2, 1114-15.
8
82'MT Gibbs MSS, at 40.
Sharp transcript, 9.
83
1bid., at 15.
84
Ibid., at 26.
85
Ibid., at 55.
86
Ibid., at 64, 83-84.
87
Ibid., at 85.
88
Ibid.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

Counsel for the owners claimed, in sum, that accidents happen, and losses caused
by such accidents, even if due to mistakes, would comprise 'other misfortune' that
would be covered under the insurance policy. Adequate care had been taken, and,
in any event, there was certainly no criminal neglect or gross negligence such as
would release the underwriters.
Lord Mansfield in his opinion said nothing on this point, but Mr Justice Buller did.
Buller said that he gave no opinion on whether underwriters would be responsible for
negligence on the part of the captain, but for the sake of argument he would suppose
the law clear that 'the Underwriters are not liable for a mistake made by the
Captain'. 89 If, on that assumption, the court were to uphold the jury verdict and
allow the owners to recover for loss by the perils of the sea, then, Buller said, the
underwriters would have no redress. The declaration says 'what is not true' (that
the losses were due to perils of the sea, contrary winds and currents, rendering the
ship foul and leaky) and 'by this manouever' there would be no basis for 'coming
to the question of law'.90 Thus the verdict could not be allowed to stand. As Buller
concluded, 'it does not seem to me in any way this evidence can support this
Declaration' 91

There are other aspects of this case that raise questions that merit brief mention. In
Sharp's shorthand version of the argument, Lord Mansfield says that Serjeant Hey-
wood's claim that twenty to thirty slaves were thrown over after the rain came was
,a very material circumstance'. This, Mansfield said, was contrary to the facts
averred, and since the jury apparently counted these slaves in the verdict, this was
another reason for a new trial.
On this point, the version of the case given by Park in his insurance treatise is rel-
evant. Park quotes Mansfield as saying that this was a *very material' fact which was
.not agreed on by both sides' 92 Yet the only basis for factual disagreement was in
Stubbs's testimony, since he was the only witness. It was for the jury to decide
whether to believe Stubbs, or how much of his testimony to credit. Why was the
point not resolved by the verdict? It does not seem possible to demonstrate that the
93
verdict was, on this issue, 'against the evidence'.

"9 Ibid., at 90.

9
"Ibid., at 91.
9'Ibid.
92
Park, Marine Insurances, 3rd ed., at 62.
93Interestingly, during argument on the motion for a new trial, Pigot said that he did not suppose the captain
and crew improperly left the coast of Africa without water, but 'it is what passed during the Voyage which I
collect from the Copy I have of Governor Stubbs' testimony', adding that Stubbs was then present in court,
Sharp transcript, at 22. Pigot went on to say that from 'that testimony of the only witness produced', it was
plain even to one unfamiliar with navigation that the only necessity was 'a Necessity brought on by Ignor-
ance and want of conduct of those that had the charge of the Ship'. At this point Mansfield interrupted to ask
whether Pigot had a copy of Stubbs's testimony: when Pigot said yes, Mansfield asked: 'Is it taken in short
hand' Pigot said no, and Mansfield responded: 'Then it will not answer the Purpose', ibid., at 23.
 LEGAL HISTORY

Finally, there is the question of evidence collected after the trial. Mansfield
himself did a little post-trial investigation. He stated:

Since the trial I was informed if they [the slaves] die a Natural Death they [the
underwriters] do not pay but in an Engagement if they are attacked and the
Slaves are killed, they will be paid for them as much as for damages done
for goods, and it is frequently done, just as if Horses were killed, they are
paid for in the Gross, just as well as for Horses killed, but you don't pay for
Horses that die a Natural death.9 4

On the specific facts of the case, the mystery pertains to the first mate, James
Kelsall. Counsel for the underwriters accused the other side of having made no real
effort to get Kelsall to testify, but counsel for the owners said they had made every
reasonable effort to find the first mate. A sworn statement by Kelsall was, however,
prepared in separate proceedings in the court of Exchequer. In Hilary term 1783
after the King's Bench action had been filed, the defendants (Gilbert and others)
initiated an action on the equity side of the Exchequer against James Kelsall and
against the plaintiffs in the King's Bench action (who became the defendants in the
Exchequer action) to prevent them from pursuing the King's Bench action. 95 On
26 July 1783, Kelsall prepared a sworn answer to the bill in the Exchequer, giving
his version of the events on board the Zong. Kelsall's answer appears in no printed
source, but was discovered by Martin Dockray. The motion for a new trial in the
King's Bench action was heard on 21-22 May 1783, more than a month before
Kelsall prepared his sworn answer. Apparently another version of Kelsall's story
was prepared before the motion for a new trial in the King's Bench was heard, as
counsel for the owners claimed to have in hand during the 21-22 May proceedings
in the King's Bench what they described as a sworn affidavit by Kelsall that fully con-
firmed Stubbs's testimony. Solicitor-General Lee read aloud from Kelsall's affidavit
during argument on the motion for a new trial, claiming that Stubbs's testimony at
trial and Kelsall's sworn affidavit were more trustworthy than anything Stubbs or
Kelsall might say two or three years after the fact if a new trial were granted -
and if the testimony on a new trial were to vary, 'it wou'd look as if there was
96
some tampering in the Business'.
It is unclear why Kelsall's affidavit was allowed to be read during argument on the
motion for a new trial. Kelsall was not said to be overseas which might have justified a
94
Sharp transcript, at 20-21.
95The injunction would run against the named defendants personally, as clearly the court of Exchequer had
no power to enjoin the court of King's Bench. As stated by David Burton Fowler, The Practiceof the Court
of Exchequer, Upon Proceedings in Equity, 2 vols., London, 1795, the writ of injunction 'issues by the
order, and under the seal, of the court, not on account of any supremacy which this court assumes over a
court of law, but in respect of its original jurisdiction as a court of equity, by which it controls the party,
and not the court, from proceeding at law, in the particular case made by the bill, till the defendant shall
have fully answered it, and this court shall have made further order', ibid., at vol.1, 247-248. Fowler
later added that 'it would be deemed a breach of the injunction in a party, or his attorney, to proceed
one
96
step at law after being served with a copy of this writ', ibid., at vol.1, 259.
Sharp transcript, at 52.
INSURANCE LITIGATION: THE ZONG AND OTHER SHIPS

deposition, and his sworn statement was not dramatic newly-discovered evidence that
might be admitted to show that a jury verdict was based on false grounds.
At any rate, the references to Kelsall produced confusion in historical assessments
of the Zong case, leading some to assume that Kelsall did in fact testify at the trial.
Shyllon quotes an account in the Morning Chronicle by an anonymous writer who
claimed to have been present at the trial on 6 March 1783, and the writer said that
'the mate acknowledged he himself had thrown [the slaves] overboard by the
Captain's order'. 97 This could only have been the hearsay account given by Stubbs
of what Kelsall may have said. 98

CONCLUSION
The story of marine insurance coverage of slave cargo in the late eighteenth and early
nineteenth centuries is striking proof that the law merchant led a life of its own. The
language describing the risks insured against evolved in the practice of the underwri-
ters in the 1600s and 1700s, and once it appeared in printed form it became fixed,
alterable only by handwritten insertions or 'gummed' attachments. Some words in
the policy were irrelevant, some were obsolete, some inaccurate, but the community
of merchants and underwriters understood the true meaning. That meaning would be
revealed at trial by the knowledge that merchant jurors brought with them to court or
by testimony about customary usage. Parliament's 1788 restrictions on risks that
could be insured against for slave cargo had no effect whatsoever on the printed
form, which had achieved semi-official status nearly a decade earlier by the issuance
of the New Lloyd's policy in January 1779. Then, by the 1794 statute, 99 parliament
made the New Lloyd's policy officially legal.
The pre-1788 policy on the Zong was undoubtedly written on the standard New
Lloyd's printed form. Mr Justice Willes called attention to the general words in the
policy - 'all other Perils, loss, or Misfortune that shall come to the hurt, detriment,
or damage of the Goods or any part thereof'. 100 This clause was invoked by the
owners to cover the plight of the ship when the slaves were jettisoned. The jury
was evidently persuaded by Stubbs's claim of absolute necessity. A new trial was
ordered, however, because of the failure of the plaintiffs to prove that the ship was
'foul and leaky' as had been claimed in the declaration, and because of a claim by
the defendants that some of the slaves had been thrown over without cause after
fresh rain had fallen, a circumstance that (if true) was also inconsistent with the alle-
gations in the declaration.
The prevailing mercantile understanding of the allocation of risk in marine insur-
ance policies on cargo travelling by ships (as private carriers) made the underwriters
97
Shyllon, Black Slaves, at 188, quoting from a letter printed in the Morning Chronicleon 18 March 1783.
98Other descriptions of the Zong case from writers who apparently had seen the Sharp manuscript at the
National Maritime Museum nevertheless give the impression that Kelsall gave testimony at the trial. See
Robert Weisbord, 'The Case of the Slave-Ship "Zong", 1793', 19 History Today (1969), 561, 562;
Baucom, Specters of the Atlantic, at 126, 135.
9
9 See text following n.19, above.
100
Sharp transcript, at 12.
 LEGAL HISTORY

responsible for 'common care' by the owners, but not for gross negligence. The
owners, however, framed the declaration as if there were no negligence whatever
by the captain, and although Stubbs in his testimony claimed 'absolute necessity',
the mistakes made by the captain were palpable and serious. In view of the gap
between the evidence and the 1allegations in the declaration, the order for a new
10 l
trial was wholly unsurprising

0
0' No evidence has been discovered to show that a new trial was ever conducted.