Captain Kidd and the lawyers

Could timely legal advice have saved one of history's most infamous swashbucklers?

In my spare time, I have recently been reading an excellent account of the downfall of Captain William Kidd, the Scottish privateer-turned-pirate. The short version of Kidd's story is that he was an adventuresome and entrepreneurial mariner who, seeking profits and glory, became embroiled in a plan cooked up with some of the most powerful and wealthiest men of his day, including Colonial Governor Lord Bellomont, and one of the directors of the East India Company. These grandees were to be the financial backers and partners behind a plan to finance Kidd as a privateer to hunt down pirates and French shipping.

However, the web of contracts and guarantees that he was asked to enter into were, not unexpectedly, drawn up to favour a quick and hefty return to these powerful investors, placing a huge burden of expectation on Kidd and his crew to deliver captured vessels and loot back to Boston on a tight timescale, with enormous risks to them of coming out of the enterprise penniless and into the debtor's jail, even if they came back at all. Kidd's own arrogance and self-belief meant that he was confident that he would have no problems in bringing back a sufficiently enormous set of prizes that there would be a big payday for everyone.

Fate dealt a different hand, however, and after a few false-starts to his expedition, he quickly found himself on the far side of the world, with time running out to deliver on the contract, a crew constantly on the edge of mutiny, as realisation dawned that they had all signed themselves up to a losing ticket, and no prizes worth much to write home about. Many believe that it was this increasing sense of desperation that led Kidd to "turn pirate" and begin raiding "friendly" shipping that was outside the scope of his lucrative and legally endorsed commission. His fate when he eventually returned to Boston harbour, long after the contractual deadlines had expired, was to be handed over to the English authorities, and shipped back to London where trial and execution awaited him.

As a lawyer involved in dispute resolution, when contractual arrangements have normally gone awry, this scenario made me think of something that I tell clients all the time - that investing some time and resources in the early stages and getting your contractual arrangements carefully reviewed before you agree to them can save much more expense and difficulty down the line.

I would not claim that even the combined wisdom of Rollits' Dispute Resolution team could have saved Captain Kidd from the gallows (by the end, he had after all killed one of his own crewmen by battering him to death with a bucket, which goes some way beyond an unfair dismissal in anybody's books), but I wondered whether he had taken the trouble to get a lawyer to look at what he was signing up to, in a situation where the balance of bargaining power in the contract was clearly not in his favour. He ended up being inescapably bound to unrealistic contractual targets, immoveable deadlines, and enormous financial risk to himself and those who looked to him for their livelihoods, and found that he had to take bigger and bigger (and eventually criminal) risks in order to try to salvage something from the venture at all.

At Rollits we don't as a rule find ourselves being asked to advise on privateering expeditions, but in embarking upon any business venture, the enthusiastic and confident entrepreneur seeking investment, perhaps from wealthy and powerful institutions, and taking on considerable risk in doing so would be well advised to consider some of the factors that caught out Captain Kidd, before signing on the dotted line:-

• Are we confident that we can really achieve what we've promised our investors or partners?
• Are the timescales that we are being asked to agree realistic?
• What flexibility does the contract allow for?
• What might be the consequences for the business if we can't deliver, or can't deliver on time?
• What security are we being asked to give?
• Are the directors and shareholders all going to be pulling in the same direction to achieve this?

If addressed at the pre-contract stage, and with appropriate commercial legal advice, many of these and other issues can often be negotiated with your backers or partners at the outset, thus avoiding a potentially costly, unpleasant and distracting dispute some way down the line.

This article is of course intended as a bit of light-hearted reflection, but the next time you find yourself in London, head to the excellent pub, the "Prospect of Whitby," in Wapping, spare a thought over a drink for Captain Kidd and the grisly end that he met at the neighbouring "Execution Dock," and wonder why he never bothered calling on his solicitors.

The book, incidentally, if you want a bit of piratical summer holiday reading, is "Captain Kidd, the Hunt for the Truth" by Craig Cabell, Graham Thomas and Richard Allan.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.