Voyages and trading illegal by the revenue laws of the United Kingdom: smug. gling adven tures. Voyages and trading illegal by an act of trade and navi gation, or by commercial treaties. Risks illegal by the Navigation Laws. The Navigation tract would clearly be void in the country where it was made, it seems that the rule of lex loci contractus ought to apply, and that the right to recover on such contract in the courts of another country must be regarded as at least very doubtful. (h) ART. 2. Risks illegal by the Trade and Navigation Laws of the United Kingdom, or by Commercial Treaties. § 263. As all traffic and all voyages carried on in contravention of the acts passed for regulating the trade and navigation of the United Empire are illegal, it follows, on the same principles, that all insurances intended for their protection are void; of these acts the most celebrated are those generally called the Navigation Laws: this is not the place for a history of these famous enactments, the expediency of upholding which is now a question for the consideration of the legislature. (i) It will be sufficient here to remark that the original act of navigation which was first passed in the republican parliament A. D. 1651, and adopted, with some alterations and additions, in the first year of the Restoration, and hence known in our statute book as the 12 Car. 2. c. 18., continued substantially in force (except in so far as its restrictions had been previously modified with regard to particular states by commercial treaties (k), and occasional acts of parliament (?)) until the year A. D. 1822. (h) Story, Conflict of Laws, 332. Laws, London, 1847, and especially the very able paper of Mr. Lefevre contained in the appendix to that work, entitled "A Comparative View of the Navigation Law of 1660 and 1845." (k) The most important are those with the United States, A. D. 1795 and A. D. 1815, given in M'Culloch's Comm. Dict., p. 1184. ed. 1837. (1) As the 49 G. 3. c. 59., permitting the importation of American goods in American-owned ships. trading illegal by an act of trade and navigation, or by treaties. Subsequently In that year, and the following, the rigour of its provisions, Voyages and having been long found to be highly detrimental to the true interests of our foreign and colonial trade, and even of British shipping itself, and likely to lead to retaliatory measures of commercial protection on the part of other mercantile states, was in some degree relaxed by several bills introduced by Mr. Wallace (m); modified. further modifications were introduced by Mr. Huskisson in the year 1825, by an act which consolidated into one all the laws for the encouragement of British shipping and navigation (n); this Consolidation Act was re-enacted, with slight alterations, in 1832 (o); and lastly, in 1845, when the act 8 & 9 Victoria, chap. 88. was passed, which forms the present navigation code of this country. As long as the last-mentioned statute remains the law of the land, the position is undoubted that all insurances intended to protect traffic or voyages carried on in contravention of its regulations, would be wholly illegal and void; nor could the assured, whether foreign or British subject, plead his ignorance of the provisions of this statute, so as to entitle himself to recover back the premium on such insurance. It will be unnecessary to cite the decisions which have proceeded upon the infringement of the now obsolete restrictions of the old navigation acts. (p) Those which follow, turn principally upon the construction of clauses now in force. The present 1845. 8 & 9 Vict. c. 88. All trading and voyages con trary to the provisions of this statute are illegal, and all insurances to protect them void. 12 & 18 sects. of 6 G. 4. c. 109. (identical with the present act.) the 13 & 20 of The 12th section of the Navigation Act of 6 Geo. 4. Case on the c. 109. (which is identical with the 13th section of the 8 & 9 Vict. c. 88.) required that certain ships should be navigated by a crew of which three parts are British. By the 18th section of the same act (identical with the 20th section of the 8 & 9 Vict. c. 88.), an exemption was given if a due proportion of such seamen could not be procured at any foreign Insurance on ship sailing from a foreign port without a due (m) The principal of these was the 3 G. 4. cc. 41, 42, 43. (n) 6 G. 4. c. 109. (0) 3 & 4 W. 4. c. 54. (p) See upon the 1st sect. of 12 Car. 2. c. 18., Morck v. Abel, 3 Bos. Voyages and trading illegal by an act of trade and navi gation, or by commercial treaties. proportion of British seamen, and without certificate of British consul, or proof of facts before an been given to port, or any place within the East India Company's charter, or if the proportion were destroyed on the voyage by any unavoidable circumstance, and the master should procure a certificate of the facts, under the hand of a British consul, or of two known British merchants if no consul at the place, or, "in the want of such certificate," if the master should prove the facts to the satisfaction of the comptroller of customs in a British port, or of any person authorised in any other part of the world to inquire into the navigation of such ship. A ship insured" from London to Sierra Leone and back,” had originally sailed from London with a proper crew, but was obliged, owing to the number of deaths that had taken owing to deaths, place amongst her original crew at Sierra Leone, and the &c., a sufficient impossibility of procuring there a sufficient number of British British seamen seamen, on any reasonable terms, to fill up her crew with number of could not be procured at such port on Suart v. Powell, The voyage of the ship outwards held not to be ren dered illegal by want of proper foreigners, and sail with a less proportion of British seamen than the act required. She had no certificate, as required in the 18th section, and was lost on the homeward voyage, so that no formal proof could be made of the truth of the above facts before any collector or comptroller of customs in a British port. Upon these facts, Lord Tenterden and the Court of King's Bench were of opinion-1. That the case fell within the exemption. 2. That the not procuring a certificate did not vitiate the policy, for the words, "in the want of" a certificate, merely meant "in the absence thereof," whether inadvertently omitted, or impossible to be procured. 3. That it was sufficient to prove the above facts to the satisfaction of the jury; for if proved before a comptroller of customs, he must have held the ship to have been duly navigated under the act they held accordingly, that the assured were not precluded from recovering against the underwriters. (9) We have already seen, that where a British subject, having chartered a ship for a voyage "from London to the Azores and back," to return with a cargo of fruit, sent her to sca (9) Suart v. Powell, 1 B. & Ad. 206. by an act of trading illegal trade and navigation, or by commercial with a crew in which there was not a due proportion of Voyages and British seamen for such return voyage (as required by the then act, 12 Car. 2. c. 18. s. 14.); this was held not to avoid a policy on the outward part of the voyage, because, non constat, that the owners would not procure a due proportion of British seamen before her return. treaties. license, and due proportion of British seamen for the return voyage. In the same case it was held no objection to the same policy, that the ship, which had been purchased from the enemy under license from the crown, was foreign built; for Sewell v. Royal Exchange a ship so purchased was authorised, upon the true construc- Company, tion of the 49 Geo. 3. c. 60. s. 1., to bring foreign produce 4 Taunt. 856. to England, by the King's license, though not English built or registered; and, non constat, that such license would not be obtained before importation. The court, for the same reasons, held that the policy on the homeward voyage was not illegal. (r) c. 59. did not American The 49 Geo. 3. c. 59. (A.D. 1809) permitted the importa- The 49 G. 3. tion of American goods into Great Britain in American legalise the imvessels, on like duties as if imported in ships not British portation of built; Lord Tenterden and the Court of King's Bench held goods into that this act did not legalise the importation of American in ships Amegoods in a vessel American built but British owned, and rican built, accordingly that an insurance on such goods on board such a owned. vessel was void. (s) The second section of the act 3 & 4 W. 4. c. 54. (identical with the second section of 8 & 9 Vict. c. 88.) prohibits the importation of certain enumerated goods from Europe, except in certain specified descriptions of ships; it has been decided that the operation of this clause extends only to prohibit the importation of the very articles therein specifically enumerated, and therefore that as "bristles and beer" are not mentioned in terms in the clause, an insurance thereon from Dantzic to London was not void on the ground that, though entered for home consumption, they were imported in a Swedish ship. (t) (r) Sewell v. Royal Exch. Ass. Comp., 4 Taunt. 856. (8) Campbell v. Innes, 4 B. & Ald. (t) Thompson v. Irving, 7 Mees. & Wels. 367. Great Britain but British Campbell v. 4 B. & Ald. 426. The prohibitions of the Act as to the importation of enumerated goods, only apply to the very goods specified Navigation in the act. Thompson v. Irving, 7 Mees. & Wels. 367. Ꮓ Ꮓ 4 Voyages and trading illegal by an act of § 264. To promote the interests of British shipping by securing to British ships the entire import trade of Asia and trade and navi- America, and the great bulk of the import trade of Europe, gation, or by commercial treaties. Former colonial policy of England as fixed by the acts of 1660 and 1663. Oppressive and injurious effects of the old colo nial system. was only one object of the original act of navigation; another main purpose of the law was to give British shipowners an entire monopoly of the whole of the import and export trade of the colonies. (u) Two years later the English legislature passed further and more stringent regulations, with the express purpose, as avowed in the preamble of the act, of keeping the colonial trade entirely in the hands of the mother country, and of making England the "staple, not only of the commodities of the plantations, but also of the commodities of other countries and places for the supplying them.” (v) The provisions of the act were well adapted to the objects thus openly stated as the motives of legislation, and their effect was to give the mother country the whole of the carrying trade of the colonies, and the exclusive monopoly of supplying them with any articles of foreign growth or British manufacture of which they might stand in need. (w) The principle, indeed, on which the British legislature proceeded was that openly professed by a British statesman of last century, who declared "that the only use of American colonies or West Indian islands is the monopoly of their consumption, and the carriage of their produce.” (x) This is not the place for tracing the oppressive effects of this mistaken system of colonial policy on the colonies themselves (y), nor for following the progressive, but exceedingly tardy, steps by which the legislature of this country has at various times, but principally in the course of the present (u) 12 Car. 2. c. 18. ss. 1. 18. See McCulloch's Comm. Dict., art. "Co. lonies and Colony Trade." nial Policy." See also art. "Colonial Policy" in M'Culloch's Appendix to Wealth of Nations, ed. 1838. note xxiii. (9) 15 Car. 2. c. 7. See preamble of pp. 599–608. I cannot forbear direct. the act. (w) 15 Car. 2. c. 7. s. 6. et passim. (y) For this whole subject, see ing the reader's attention to an admirable review of the effects of the British colonial system on the North American colonies, in Bancroft's History of the United States, vol. ii. chap. xx. |