Parker v. Jones, 13 Mass. 143
13 Mass. 143
US-DOC-21184100
locator
Case details
Bluebook Citation
Parker v. Jones, 13 Mass. 143
Full caption
James Parker and Others versus John C. Jones.
Country
United States
Jurisdiction
Massachusetts (MA)
Court
Mass.
Insurance against condemnation for a breach of the trade laws of a foreign conntry, is a lawful contract; but-this risk is not within the general words of a policy, unless the voyage be to a place where no legal trade can be carried on; in which case such a risk will be presumed to have been within the intentions of the parties to the policy.
This was assumpsit upon a policy of insurance, dated December 25th, 1809, in which William Swan, as well in his own name, as for and in the name or names of any other person or persons whom it m.ight concern, was insured the sum of $ 5000 on the Spanish schooner Nostra Señora Del Rosario, and $ 5000 on her cargo, from Perth Amboy, in New Jersey, to Curagoa, at a premium of six per cent. The defendant subscribed $ 1000.
* The cause was tried on the general issue at the last November term, before Parker, C. J.
The plaintiffs resided in New Jersey, and were interested in the cargo to the amount insured ; and the only question was, whether the loss happened from any of the perils mentioned in the policy, which, in this respect, was in the common printed form.
It appeared that the vessel arrived safely at Curagoa, and was immediately seized by the officers of the customs there, for an alleged violation of their laws. The vessel and cargo were libelled in the Court of Vice-Admiralty at Curagoa, and condemned as forfeited. The causes of condemnation, as set forth in the sentence, were, that the vessel was not navigated according to the provisions of the British statute of 45 Geo. 3, by which the trade to Curagoa was opened to foreign vessels; and that she had on board articles of merchandise, which, according to that statute, could not be imported in any foreign vessel. The particular provisions of that statute were not stated in the sentence, nor were they proved by either party on the trial. The cargo insured is mentioned in the policy to be flour, valued at $ 10 per barrel; and it did not appear whether there was any other cargo on board.
The British government, by an Order in Council, made on the 11th of April, 1808, had instructed all their ships of war, not to seize or molest any vessels, laden with lumber or provisions, and bound to any of their colonies in the West Indies ; but to suffer such vessels to pass, without regard to any irregularity in their papers.
On the 27th of March, 1810, the said Swan, in behalf of the plaintiffs, wrote a letter to the defendant, informing him that the vessel had been seized at Curagoa, as above mentioned. The defendant, '.n his answer, dated April 2d, observed, among other things, that it was strange that the officers at Curagoa should proceed in that man p. 144ner, after the promulgation of the above-mentioned order of the British government ; and expressed his belief, that the property * would be restored, on appeal to the High Court of Admiralty in England.
It did not appear how the vessel was navigated, nor what was the national character or description of her crew.
Upon this evidence the judge, who sat in the trial, was of opinion, that the loss was not occasioned by ány of the perils insured against, and directed a verdict for the defendant. A verdict being accord • ingly so returned, the plaintiff moved, for a new trial on account of the said direction.
W. Sullivan, for the plaintiff. The policy protected the vessel and cargo until they should have been twenty-four hours in safety. The seizure, in this case, being immediately on her arrival, the loss was within the policy ; and the burden is on the defendant to show how he is excused. If he suggests that the loss arose from an attempt on the plaintiffs’ part to carry on an illicit trade, prohibited by the British statute, we say that the Orders in Council of April, 1808, virtually suspended or dispensed with that statute, as to this point. But, however this may be, the statute and orders were equally within the knowledge of the underwriter and the assured, and it belonged to the defendant to exclude this risk expressly, if he did not intend to assume it. Where both parties believe a trade to be lawful, and in fact it is otherwise, the underwriter is held, if a condemnation takes place for illicit trade. An insurance against condemnation for a breach of the trade laws of a foreign country is a lawful contract.(1)
Ilall and Prescott, for the defendant. Unless illicit trade is expressly insured, the underwriter is not liable for a loss so incurred. If one insures munitions of war, eo nomine, and afterwards a war occurs between the country to which the vessel is bound and any other, whereby the goods insured become contraband of war, the underwriter is not held, if the assured chooses to proceed.(2) The defendant, in this case, cannot be presumed to have assumed the risk of * illicit trade, when both parties believed the trade to be lawful. The Order in Council of 1808 was universally known here ; and it was as generally believed that there could be no risk of seizure in the British colonies, on the ground that such a voyage as this was a violation of their trade laws. This was the belief of the parties to this action. But, whether it was or not, or even if it were proved that the trade was unlawful, still we contend that the defendant is not liable.(3) It is immaterial to show what p. 145were the provisions of the British statute. The condemnation is uncontrollable evidence that the statute was violated, be the provisions of it what they may.(4)
(1)
6 Mass. Rep. 102, 197, 206.—2 Cranch, 187.— 1 Johns. N. Y. Cases, 1,14.—Ibid 336 — 6 Mass. Rep. 234.
(2)
(3)
It is true, that underwriters are presumed to know political and commercial events of general character, but not all the municipal laws of the foreign country to which a vessel may be bound. The question, in short, is a very narrow one. It is well settled, that illicit trade is not within the general words of our policies, unless that risk be expressly assumed, or an irresistible implication arises from the fact, that no other commerce can be carried on at the place to which the vessel is bound, and this fact be known to both parties. Here this risk was not expressly assumed. Detainments, &c., in the policy, refer to embargoes, &c., but never have been extended to seizures for the breach of trade laws. Nor does any necessary implication arise in this case ; since there has always been some lawful trade to be carried on with Curapoa; and the smallness of the premium, in the policy in question, entirely excludes the idea, that any such risk was contemplated by the parties to it.
By the Court. It is generally true, that an insurer is not liable for losses arising from a breach of the trade laws of the foreign country to which the voyage insured is made ; unless such risk is expressly assumed, or must be presumed by necessary implication to have been intended to be taken. Insurance against such loss is. * undoubtedly a legal contract. In the case before us, it sufficiently appears, that the loss was owing to that cause.
It has been argued, that the defendant must be understood to have taken this risk, because he was informed of the nature of the voyage. But it is well understood, that some trade may be lawfully carried on at Curapoa; and the presumption does not necessarily arise, except in cases where none but a contraband trade can be carried on.
The Order in Council has been relied on, as relaxing generally the British colonial system. But this order was known to have been intended for no other purpose than to meet and counteract the restrictive measures of the government of the United States. It provided only, that vessels, which had escaped from our ports without regular clearances, and apparently bound to their colonies with provisions, should not be molested by their cruisers. The vessel, in this case, was not condemned for being without the usual documentary papers, but for a breach of the general standing laws of trade, as enforced in the British colonies. It was not, then, a loss within the policy declared on.
Judgment on the verdict.
(4)
Emerig. c. 12, § 31.