232 CHAP. Johnson v. Sutton, Doug. 241. CHAPTER WE THE TWELFTH Of Illegal Voyages. E proceed now to the confideration of another circumftance by which the contract of infurance is vacated and anulled ab initio : and it is this; that whenever an insurance is made on a voyage exprefsly prohibited by the common, statute, or maritime law of the country, the policy is of no effect. The principle, upon which fuch a regulation is founded, is not peculiar to this kind of contract; for it is nothing more than that which deftroys all contracts whatfoever that men can never be prefumed to make an agreement forbidden by the laws; and if they fhould attempt such a thing, it is invalid, and will not receive the af fiftance of a court of justice to carry it into execution. The most material cafe upon this point is that of Johnson and Sutton, which came on to be argued in the year 1779, and received the folemn opinion of the Court of King's Bench. It was an action on a policy of infurance on goods, on board the fhip Venus, "loft or not loft, at and from London to New York, warranted to depart with convoy from the channel for the voyage." The caufe was tried before Lord Mansfield at Guildhall, and a verdict was found for the plaintiff. The defendant obtained a rule to fhew caufe why there fhould not be a new trial. The facts, upon his Lordfhip's report, appeared to be thefe: the fhip was cleared for Halifax and New York. She had provisions on board, which fhe had a license to carry to New-York, under a provifo in the prohibitory act of 16 Geo. III. c. 5. But one half of the cargo, including the goods, which were the fubject of this infurance, was not licenfed, and was not calculated for the Halifax market, but for New York. There had been a proclamation by Sir William Howe to allow the entry of unlicenfed goods at New York; and though there were bonds ufually given at the XII. the Custom House here, by which the captain engaged to CHA P. carry the goods to Halifax, thofe bonds were afterwards cancelled, on producing a certificate from an officer appointed for that purpofe at New York, declaring, that they were landed there. The commander in chief had no authority under the act of parliament to iffue fuch proclamation, or to permit the exportation of unlicenfed goods. The Venus was taken in her paffage to New York by an American privateer. The first fection of the ftatute prohibits all commerce with the prov- 16 Geo. III. c. ince of New York (amongst others) and confiscates all fhips 5. and their cargoes, which fhall be found trading, or going to, or coming from trading with them. In fection the second, there is a provifo, excepting fhips laden with provisions for the use of his majesty's garrisons or fleets, or for the inhabitants of any town poffeffed by his majesty's troops, provided the master shall produce a license fpecifying the voyage, &c. and the quantity and species of provifions; but by the fame provifo, it is declared, that goods not licensed, found on board fuch fhip, fhall be forfeited. After argument, upon the motion for a new trial, Lord Mansfield faid-" The whole of the plaintiff's cafe goes on an established practice, directly against an act of parliament. If the defendant did not know that the goods were unlicensed, the objection is fair as between the parties. If he did, he would not deferve to be favoured. But, however that may be, it was illegal to fend the goods to New York, and, in pari delicto, potior eft conditio defendentis. It is impoffible to bring this within the cafes cited (a), because here there was a direct contravention of the law of the land." The rule for a new trial was made abfolute. From this cafe much information is to be collected; for, ft. the principle advanced at the beginning of the chapter is established, that is, that an infurance of a voyage, which is prohibited by ftatute, is void. This cafe alfo ferves to remove a diftinction, which occurs in a very refpectable writer. The learned Roccus obferves, that if fuch an infurance, Roccus de Af as (a) These were cafes of insurances on fhips trading contrary to the reve nue laws of foreign countries, of which more will be faid hereafter. fecurat. n. 121 XII. CHA P. as that of which we have been speaking, should be made, ignorante affecuratore, the infurer is discharged: from whence we are to infer, that in his opinion, if the insurer was acquainted with the nature of the voyage, he would continue liable. But the doctrine of the Court of King's Bench overturns fuch a distinction, because the very contract is a nullity, and a court of justice can never lend its authority to fubftantiate a claim, founded upon a contract which is abfolutely repugnant to the known and established laws of the land. Of this opinion is Bynkerfhoek, who fays, that even if it be told to the underwriter, that the voyage is illicit, he fhall not be bound; because the contract is null and void, and where that is the cafe, the compliance with the terms of it depends upon the will of the contracting parties merely. But that which depends merely upon will is not a proper fubject for a fuit at law. Bynk. Quæft. jur. Pub. 1. 1. C. 21. fub fine. 270. If a fhip, though neutral, be infured on a voyage prohibit ed by an embargo, laid on in time of war, by the prince of the country, in whofe ports the fhip happens to be, fuch an Black. Com. infurance alfo is void. This depends upon the power of an embargo, the right of laying on which by the fovereign of this Vide ante, 79. country in time of war is undoubted; although in time of peace it may be a different queftion. The right being admitted, it follows of course, that any act done in contravention of a proclamation of this nature, is illegal and criminal; because it is equally binding as an act of parliament, and a contract founded on fuch illicit proceedings is confequently void. Delmada v. This was determined in a very modern cafe, upon a ipecial verdict. It was an action on a policy of insurance on the Bella Juditta, a Venetian fhip, at and from London to the Grenades, with liberty to touch at Cork and Madeira to load. The defendant pleaded the general iffue; and the caufe came on to trial before Mr. Juftice Buller, when the jury found a fpecial verdict, the material facts in which were thefe: That the fhip was a Venetian veffel, and the plaintiff a subject of the ftate of Venice; that in October 1782, the fhip failed on her voyage from London to Cork, and there took in a loading. of XII. of provisions, the property of French fubjects, the enemies CHA P. of the king of Great Britain. That the faid fhip, having taken in at Cork clearances and bills of lading for Madeira, an ifland belonging to the king of Portugal, failed in December 1782, from Cork to that ifland, at which fhe was neither to unload any part of her cargo, nor to receive any goods on board, but where the took clearances and bills of lading for the island of St. Thomas, belonging to Denmark, whither fhe was not destined: that on her voyage from Madeira to Grenada, within 14 leagues of the latter, fhe was captured by an English man of war as prize, and carried to St. Lucia: that when the ship failed from London, and from thence till after the capture, Grenada was in the poffeffion of the French king. The special verdict further finds, that his majesty on the 18th day of August 1780, laid an embargo upon all ships and veffels laden or to be laden in the ports of the kingdom of Ireland with black cattle and hogs, beef, pork, butter, and cheese, or any fort of provifions. It is alfo found, that after the capture, a fuit was commenced in the Vice Admiralty Court at Barbadoes, against the said ship and cargo, as belonging to the French king, or to fome of his fubjects; and the judge. of that court did condemn the cargo as the property of the enemies of the king of Great Britain, which sentence was appealed from, and is now depending: that the judge of the faid Court of Vice Admiralty was of opinion, that the faid fhip Bella Juditta was the property of Abram Delmada the plaintiff, and ordered that the hip fhould be restored; but he did not conceive the owner of the faid fhip to be entitled to any freight, or damages occafioned by the capture, because she was engaged in a wrong act, and the captor did no more than his duty; that the faid fhip was accordingly restored, Upon this verdict, the question for the court to decide in point of law, was, whether the infurers upon the fhip on this voyage were liable to pay for this lofs of freight, and the damages occafioned by the capture. Lord Mansfield."Is this voyage. not a breach of the embargo? The king in time of war has an undoubted right to lay an embargo: in time of peace it is another question. Every power lays them on. If the fhip had only been carry ing ing goods of an enemy on a voyage lawful for her to perform, fhe might have been entitled to freight. But here the fentence fays, fhe fhall not. And why? because she has done a wrong thing. It is a fraud; for under colour of a neutral port, fhe goes to an enemy's port. She breaks an embargo. What the confequence of that is, has not as yet been fettled but to break an embargo is undoubtedly a criminal act; and wherever a man makes an illegal contract, this court will not lend him their aid." The defendant accordingly had judgment. Though an insurance upon a fmuggling yoyage, prohibit ed by the revenue laws of this country, would be void under the principle above stated; yet the rule has never been fuppofed to extend to thofe cafes, where fhips have traded, or intend to trade, contrary to the revenue laws of foreign countries, becaufe no country takes notice of the revenue laws of another in fuch cafes, therefore, the policy is good and valid; and if a loss happen, the underwriter will be anfwerable. Thus in the cafe of Planche against Fletcher, which was ftated, at large in a preceding chapter, one of the objections taken to the infurance was, that there was a fraud on the underwriters, the ship having been cleared out for Of tend, although she was never defigned to go to that place. But Lord Mansfield declared for himself and his brethren, that it was no fraud on the underwriters, perhaps on nobody. The reafon for clearing for Offend, and figning bills of lading, as from thence, did not fully appear: but it was guefied at. The Fermiers Genereaux have the management of the taxes in France. As we have laid a large duty on French goods, the French may have done the fame on ours, and it may be the intereft of the farmers to connive at the importation of English commodities, and take Oftend duties rather than ftop the trade, by exacting a tax, which amounts to a prohibition. But at any rate, this was no fraud in this country. One nation does not take notice of the revenue laws of another. In another cafe, a fhort time afterwards at Guildhall, Lord Mansfield, in his charge to the jury, advanced the fame doctrine which had been established by the whole court in the preceding cafe. |