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is rendered illegal by the statute. In Freard v. Dawson, Guildhall, 29th May, 1805, Marshall Ins. 136, 4th ed., on stat. 26 G. 3. c. 40. s. 1., which requires the master to make out and sign a manifest of all goods shipped in British ships beyond sea, for Great Britain, with the particulars of the cargo, before the ship clears out, it was held that every part of the cargo, even that which was used for dunnage or ballast, must be inserted; and that the omission of it rendered the voyage illegal, though a penalty of 2007. was imposed on the master by the 12th section if the goods did not agree with the manifest. The matter is fully discussed in 1 Duer Marine Insurance, 377. After referring to Keir v. Andrade (a), he says, "In Suart v. Powell (b) the question was, whether the voyage insured in a policy upon the ship and freight, had been rendered illegal by the ship not having on board, at its commencement, the proportion of British seamen required by the Navigation Act of 6 G. 4. c. 109.; and it was insisted by the counsel for the assured, that, as the statute created no forfeiture, but merely imposed a penalty upon the master and owners, of 101. sterling for each foreign seaman taken on board, the supposed illegality was not of a nature to affect the insurance. The Court, upon other grounds, decided the case in favour of the assured; but ⚫ it seems to have been distinctly admitted by Lord Tenterden-and the admission is implied in the opinions of the other Judges-that if the conduct of the master, in supplying the deficiency of his crew by foreign seamen, could, under the circumstances, have been justly considered a violation of the statute, it would have rendered the voyage illegal, and, by consequence, have avoided (b) 1 B. & Ad. 266.

(a) 6 Taunt, 498.

the policy. *
* * * So, in many of the cases in
which the voyage or trade insured has been held to be
illegal, in consequence of the violation of a license, the
only effect of the breach, or abuse, of the license, was
to subject the party to the forfeiture of his bond, or other
penalty, but not to work a forfeiture of the subject in-
sured." Id. 318, "By an Act of Congress, no goods
brought into the United States, from any foreign place, can
be unladen, or removed from the vessel in which they are
brought, without a special license or permit, in writing,
from the collector, or other officer of the customs, at the
port of importation, and a pecuniary fine or penalty is
imposed upon all persons, who shall, knowingly, aid, or
be concerned, in such unlawful unlading or removal. In
a case before Mr. J. Story, where the master, who was
also a part owner of the ship insured, received on board,
clandestinely, an anchor, brought in another vessel, into
the port of New Orleans, from a foreign place, and un-
laden without a permit, it was held by that eminent
Judge, that the act of the master was a plain violation
of the statute, and subjected him to the penalty imposed;
and he intimated a clear opinion, that, had the illegality
occurred at the inception of the policy, as the vessel had
no right to sail with the anchor on board, it would have
rendered the contract utterly void, as to all the owners.
The insurance, he observed, was on account of all the
owners, and was, therefore, not divisible. *** There
is, it has occurred to me, a distinction on this subject,
plainly implied in the observations of Mr. J. Story, that
is material to be noticed. In all cases, where, by the
violation of a law of trade, the property insured, is sub-
jected to forfeiture, the insurers are, doubtless, dis-
charged; but, when the law, creating no forfeiture, limits

1865.

WILSON

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RANKIN.

1865.

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RANKIN.

itself to the punishment of the offender, the participation or privity of the assured is probably necessary to be proved, in order to avoid the policy." The passage in 1 Phill. Ins., §. 210, 3 ed., where he says that insurance is defeated by noncompliance with the Act, 43 G. 3. c. 57., requiring vessels to sail with convoy, will probably be relied on, but the cases which he cites are remarked on in Duer on Marine Insurance, p. 410, who says, "The Act, like all similar laws, was temporary, and the decisions under it, turn solely on the construction of its particular terms."

Thirdly. The ship was rendered unseaworthy by the master not complying with the requisition of the Legislature. There is unseaworthiness in fact, and unseaworthiness in law, and noncompliance with the provisions of an Act of Parliament is a "statutory" unseaworthiness. [He cited Sadler v. Dixon (a), and the judgment of Blackburn J. in Burges v. Wickham (b).] The Court below relied on Earle v. Rowcroft (c), as an authority that owners cannot be supposed to have given the master of a ship authority to violate the law, and consequently that when he endeavoured to carry out their order in an unlawful manner it was an act of barratry. mere deviation, not amounting to barratry, will not render the underwriter liable. [Pollock C. B. Can a ship be called unseaworthy because her captain violates some regulation respecting lights?] That depends on the wording of the statute requiring attention to be paid to them. [Pollock C. B. Quod fieri non debuit, factum valet. Could not the owner of the freight have recovered

But

(a) 8 M. & W. 895.
(c) 8 East 126.

(b) 3 B. & S. 669. 689.

for it?] If a ship is warranted to carry twelve guns, the warranty would not be complied with by her carrying ten (a).

The next day (November 28th),

Brett (Milward and C. Crompton with him) appeared for the plaintiff, but was not called on.

ERLE C. J. It is clear from Cunard v. Hyde (b) that if the shipowner had either done this illegal act himself, or been cognizant of it when done by the captain of the ship, it might have vitiated the policy. But the judgment of the Court below proceeded on the ground that as he had nothing to do with it, and knew nothing about it, that rule, according to the first case of Cunard v. Hyde (c), did not apply. They thought that, although the captain had authority from the owner of the goods to stow the cargo, he was not ordered to violate the statute; and in that judgment we concur.

We also think the second ground of the judgment of the Court below was a valid one. If it were shewn that the master, by his act, though done for the benefit of the owner, rendered this an illegal voyage, it would still be a barratrous act in the master, and consequently the insurance on the freight ought to be upheld.

It was further contended that a statutory unseaworthiness was shewn here, because the ship, having spars and other articles on deck, had sailed from Canada without a certificate of clearance with no deck cargo; and it was attempted to be argued that the insurer was discharged, on the principle that if a ship sails without

(a) Pawson v. Watson, Cowp. 785. 790.
(b) E. B. & E. 670; 2 E. & E. 1.

(c) E. B. & E. 670.

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being provided with proper documents his risk is increased, and, therefore, that if a ship sailed from Canada, without the certificate of clearance required by the statute, and with an illegal cargo on board, the absence of that document created a statutory unseaworthiness. But the principle by no means applies. The document here is merely a certificate of compliance with the requisitions of the statute at the port of loading, and does not at all bear on the risk of the voyage after the ship is out of port or upon her arrival at the port of discharge.

Judgment affirmed.

FND OF HILARY TERM.

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