1 East, 487; Vandyck v. To divest a trade of its hostile character, the license under (1) Vanharth which it is conducted must be granted by a sufficient authority (1) als v. Halhed, the trade must be conducted by the persons in whose favour the license is granted,(a) within the time for which it is in force,(b) Whitmore, 1 and according to the terms and conditions of the license.(c) It has however been held that a license of trade with an enemy, or a license granted to an enemy to trade, is the subject of a large and liberal construction.(d) East, 475; Shiffner v. Gordon, 12 (2) The Anna Catharina, 4 Rob. 118. If a person not domicilled in the enemy country, make a contract with the hostile government for privileges and the monopoly of a branch of trade, and send an agent into one of its colonies to prosecute business under the contract, the trade has a hostile character and accordingly cannot be insured.(2) As a license from the merchant's own government will make a trade lawful, which would otherwise have a hostile character, so a license from the enemy will render trade illegal, which would otherwise be entitled to the protection of the law; as in the case of a voyage from the United States to Portugal, with which the United States were at peace, Great Britain being at the same time at war with the United States, where the ship had on board a license from a British admiral, for the purpose (a) Fayle v. Bourdillon, 3 Taunt. 546; Usparicha v. Noble, 13. East, 332; Feise v. Bell, 4 Taunt. 4; Morgan v. Aswald, 3 Taunt. 554; Klingender v. Bond, 14 East, 484; Rawlinson v. Janson, 12 East, 223; The Beurse Van Konnigsberg, 2 Rob. 169; The Jonge Johannes, 4 Rob. 263; The Jonge Klassina, 5 Rob. 297; The Cousine Marianne, Edw. Adm. Rep. 346; Busk v. Bell, 16 East, 3; Barlow v. M'Intosh, 12 East, 311. (b) Robinson v. Touray, 1 M. & S. 217; Feise v. Waters, 2 Taunt. 248; Siff kin v. Allnutt, 1 M. & S. 39; Freeland v. Walker, 4 Taunt. 478; Leevin v. Cormac, 4 Taunt. 483; Williams v. Marshall, 1 Moore, 168; 2 Marsh. R. 92; 6 Taunt. 390; 7 Taunt. 468; Tullock v. Boyd, 1 Moore, 174; 7 Taunt. 471; The Goede Hoop, Edw. Adm. Rep. 327; The Carl, Edw. Adm. Rep. 339; The Johan Pieter, Edw. Adm. Rep. 354; Groning v. Crockat, 3 Camp. 83. (c) Le Cheminant v. Pearson, & same v. Allnutt, 4 Taunt. 367; Hagedorn v. Reid, 1 M. & S. 567; Hagedorn v. Bazett, 2 M. & S. 100; Hullman & al. v. Whitmore, 3 M. & S. 337; Anthony v. Moline, 5 Taunt. 711; Rucker v. Ansley, 5 M. & S. 25; Everth & al. v. Tunno, 1 B. & A. 142; Butler v. Allnutt, 1 Stark, 222; The Cosmopolite, 4 Rob. 8; The Hoffnung, 2 Rob. 162; The Jonge Arend, 5 Rob. 14; The Juffrow Catharina, 5 Rob. 141; The Clio, 6 Rob. 67; The Gebroeders, Edw. Adm. Rep. 95; The Byfield, Edw. Adm. Rep. 190; The Catharina Maria, Edw. Adm. Rep. 337; The Wolfarth, Edw. Adm. Rep. 365; The Europa, Edw. Adm. Rep. 341; The Vrow Cornelia, Edw. Adm. Rep. 349; The Jonge Frederick, Edw. Adm. Rep. 357; The Cornelia, Edw. Adm. Rep. 360. (d) Defflis v. Parry, 3 B. & P. 3; Robinson v. Touray, 1 M. & S. 217; Feise v. Waters, 2 Taunt. 248; Fayle & al. v. Bourdillon, 3 Taunt. 546; Flindt v. Scott, & same v. Crockatt, 5 Taunt. 674; Usparicha v. Noble, 13 East, 332; Feise v. Bell, 4 Taunt. 4; Mor gan v. Oswald, 3 Taunt. 554; Hagedorn v. Reid, 1 M. & S. 567 Kensington v. Ingiis, 8 East, 273; The Juno, 2 Rob. 116; The Plan ter's Wensch, 5 Rob. 22; The Goede Hoop, Edw. Adm. Rep. 328. of protecting the property from British capture, the voyage was adjudged to be rendered illegal by the use of the license ;(1) (1) The Julia, and would have been so, even though the license had been pro- 181. See also 8 Cranch, cured by the agent, without the owner's knowledge.(2) It was the Aurora, 8 held in Connecticut that such a license obtained through the Cranch, 203. minister of the neutral country, to whose territories the voyage (2) The Hiwas intended, did not render the voyage illegal.(3) The Su- ram, 1 Wheat. preme Court of the United States was, however, of opinion that (3) Bulkley v. 'the mere sailing under an enemy's license, constituted of itself Derby Fishing an act of illegality."(4) An agreement that a ship should have Co. 1 Conn. one of these licenses on board, was held in New York to be (4) The AriRep. 571. illegal and void, and so was a policy, warranting the ship to adne, 2 have such a license.(5) 440. Wheat. 143. See also Colquhoun v. N. Y. Firem. Johns. 352. (6) Perkins v. N. E. M. Ins. Co. 12 Mass. 176. Shearman, 1 But a policy on one of these licenses valued at a certain sum, Craig . U. S. was decided in Massachusetts to be a valid and legal contract.(6) Ins. Co. 1 PeAnd accordingly the same court held that the having such a ters' Rep. license on board of the ship, for the purpose of protecting the 410. cargo against capture, did not render the voyage illegal or make Barker, 18 a policy on the cargo void. Parker C. J. said, even if the Johns. 87; parties had incurred a penalty for possessing the paper, still the voyage was left untainted, and the insurance valid."(7) If the voyage be undertaken in violation of the law of nations, or that of the place where the policy is made, the property cannot be insured. A policy on a cargo imported from a foreign port, with which intercourse is prohibited by the law of Rep. 214. the place where the insurance is effected is void.(8) If the trade (7) Hayward be illegal, it defeats the policy on the ship, as well as that on . Blake, 12 the cargo.(9) Ships or goods destined in contravention of the Mass. Rep. monopoly of the British East India or South Sea Company, can- (8) The Unitnot be effectually insured in England, the privileges of these ed States v. companies being guarantied by law.(10) And if any part of The Paul the entire voyage or adventure, be in contravention of such monopoly, no insurance will be valid, whether it be for the whole 98. voyage, or the part of it, which, distinct from the other, would (9) Gray r. have been lawful.(11) But where the outward voyage is distinct Sims & al. from the homeward, and some part of the trade on the outward Dig. h. t. No. voyage is in violation of a privilege granted by statute, still the 3. homeward voyage may be insured. A vessel, in her outward (10) Camden voyage, was employed in a trade, by which the privileges of B. & P. 272; the East India Company were infringed upon, and afterwards Morck & al. went to Canton and took a cargo for Europe, a part of which . Abel, 3 B. was purchased with the proceeds of the previous illegal voyage; Chalmer v. this was held not to contaminate the interest, and the entire ad- Bell, 3 B. & venture, commencing at Canton, being legal, might well be in- P. 604; sured.(a)(12) If the voyage be in violation of an embargo, laid by the gov- A. 334. ernment of the country to which the owner of the property belongs,(b) or in violation of a law, prohibiting the exportation of naval stores, the property cannot be insured.(c) In like manner insurance was defeated by an evasion of the act of parliament ell v. Roy. Ex. Wharton's r. Anderson, 1 & P. 35; Dunlop r. (11) Wilson v. T. R. 31. (12) V. Sew Ass. Co. 4 (a) Bird v. Appleton, 8 T. R. 562. (b) Dalmada v. Motteux, Taunt. 856. Park. 357. (c) Parkin v. Dick, 2 Camp, 221. S. C. 11 East, 502. Wainhouse v. (1) Ingham & requiring vessels to sail with convoy ;(1) and also by the foral. v. Agnew, feiture of a bond given in pursuance of law, the condition of 15 East, 517; which was, to employ the cargo in trade on the coast of Africa.(2) The English law requires, that, on the exportation of gunpowder, a bond, conditioned to export it to the place proposed, shall be given by the merchant exporter.' The bond being given by the manufacturer instead of the exporter, rendered a policy on the gunpowder and other goods void in respect to the other goods, as well as the powder.(3) Cowie, 4 ton, 2 Marsh. Service, 5 Marsh. Rep. 119. (3) Camelo v. Britten, 4 B. & A. 184. (4) Everth v. Blackburn, 2 Stark. 66. (5) Laws of U. S. v. 2. c. 146. [I.] s. 2. (6) Duncan son v. M'Clure, 4 Esp. 98; Yal- The English law prohibits the joint lending of money on bottomry; therefore persons so lending cannot in England insure their interest.(4) The laws of the United States do not permit foreigners to have any interest in American registered vessels ;(5) they cannot therefore have any insurable in such vessels.(6) So in England, where the law requires that a register shall be taken out by the owner of the ship, it is held that where the assured had not, at the time of effecting insurance, taken out a register, he had not a legal insurable interest, because he did not hold his interest in conformity to the law.(7) The English law also requires that the register shall be recited in the bill of sale, but a mere clerical mistake in reciting it, such as inserting' 1783' instead of 1782,' will not defeat the title of the vendee.(3) But in the United States the law requires no recital of the register in the bill of sale, nor any bill of sale; the interest in a ship as well as in any other chattel, may be transferred by a sale and delivery, without writing.(9) A register is necessary only for the purpose of entitling the ship to the privileges of an American registered vessel, not for that of giving a good title to a purchaser ;(10) and to prevent any person resident in a foreign country, except an American consul or a partner of an American house, from participating in the privileges allowed to American ship-owners, a bond is given at the time of taking out a register, to return it for the purpose of having it cancelled on al. v. Hibbert the transfer, to a foreigner, of any interest in the ship.(11) If a contract involves a contravention of the laws of a foreign (8) Rolleston state, it is not therefore void. A policy made in New York on & al. v. Smith, linens, nankeens, and cloths, from thence to Jamaica, the impor(9) Wendover tation of which from New York was prohibited by the laws in . Hogeboom, force at Jamaica, was held to be valid. Lansing, C. J. said, 7 Johns. 308.this was a voyage undertaken expressly for the purpose of (10) Hatch v. illicit trade in a foreign country. A policy on such a voyage 5 Mass. Rep. against our own laws would be void, but we are not bound to 53; Pratt & declare it void, when merely contravening the positive regulaal. v. Phon. tions of a foreign state."(a) 15 Ves. 60; Campbell v. Stein, 6 Dow, 116; Houghton ex parte, 17 Ves. 253; Camden v. & al. 3 T. R. 406. 4 T. R. 161. Smith & trs. Ins. Co. 1 Browne, 267, cited Whar ton's Dig. 320. (11) Laws U. S. v. 2. c. 146. h. t. No. 32. [1]. s. 7. Upon this principle Lord Mansfield, with the concurrence of the other judges, held that a foreigner who sold goods at Dunkirk to an Englishman, knowing that the Englishman intended to smuggle them into England, might recover the price in a British court.(b) Some doubt seems, however, to be thrown upon this (a) Gardiner v. Smith, 1 Johns. Cas. 141, there are many decisions upon this principle. (6) Holman & al. v. Johnson, Cowp. 341. opinion by a subsequent decision. Goods were exported from England upon giving a bond to employ them in trade on the coast of Africa, and the forfeiture of the bond was a breach of the law requiring it. An agreement was made to meet an American vessel, on the coast of Africa, on board of which the goods were to be transhipped. This was held to be a violation of the law by the English vessel; and as the owners of the American vessel participated in this violation of the English law, it was held that neither the American vessel nor the cargo, after being transhipped, could be insured in England.(1) (1) Gibson & al. v. Mair, 1 Marsh. Rep. 39; Gibson Taunt. 433. 26; Grot. It is a general rule, however, that a person does not necessarily forfeit the right of insuring his interest, in ship or goods, from the circumstance of their being employed in an interloping v. Service, 1 trade. It is said that one state does not take notice of the reve- Marsh. Rep. nue laws, or commercial regulations, or municipal laws, of another. 119; S. C. 5 This rule seems to have arisen partly from the circumstance, (2) 6 Mass. that some foreign countries, Spain and Portugal in particular, Rep. 114. have imposed many commercial restrictions, which their own (3) 1 Maccabees, ch. 8. v. subjects are in the habit of violating, and it would be an excessive severity in a government to require of its subjects an exact Lib. 3. c. 1. observance of the laws of a foreign country, which are disre- s. 5; Vattel, garded by the people of that country. Another reason of this lib. 3. c. 7. n. 103, 104. rule probably is, that nations, though at peace, have still con- See also Rob sidered themselves to be rivals and competitors in affairs of inson's Col. trade. Each government, therefore, considers itself at liberty Mar. p. 54, to make any commercial regulation for the purpose of extending (4) p. 78. its own trade and industry, though at the expense of those of (5) The Enanother nation. This seems to give the other nation the right draught, 1 to counteract such regulations, by making others, or by permitting its own citizens to contravene and evade what are, in some sense, intended for hostile measures. 63, 123, 184. Rob. 25. The law of nations is that of every country, and therefore an The Twee Juffrowen, 4 interest held, or property employed, in violation of that law, Rob. 242; cannot be a subject of insurance.(2) The law of nations makes The Richit the duty of a nation professing to be neutral, to abstain from mond, 5 Rob. assisting either belligerent to carry on a war, by furnishing sol- 325. (7) The Nepdiers, ships of war, arms, or warlike stores. (3) The trade thus tunus, 2 Rob. interdicted to neutrals is denominated contraband, but in deter- 108. mining what particular articles of merchandize are contraband (8) The Gute Gesellchaft of war, Mr. Marshall says, (4) much depends on the power of Michael, 4 the party, whether belligerent or neutral,' who is deciding the Rob. 94. question. A belligerent, possessing a powerful naval force, has (9) The Charan interest in making the list of contraband articles numerous. lotte, 5 Rob. 'Ship timber, going to a port of naval equipment,'(5) pitch and (10) The tar,(6) sail cloth,(7) hemp, fit to be used in equipping ships,(8) Richmond, 5 sheathing copper,(9) a ship, intended to be sold for the purpose of Rob. 330. being used as a privateer,(10) and also provisions of a kind com- Jonge Marga(11) The monly used as sea-stores, destined to a port of naval equip- retha, 1 Rob. ment,(11) have been adjudged by Sir William Scott to be contra- 189; The band of war. Ranger, 6 Rob. 125. 275. Vattel (12) says, that provisions may be contraband of war, if (12) lib. 3. c. destined to a place which one of the contending parties is at- 7. s. 112. (1) 2 Val. 264, tit. des tempting to reduce by famine. The writers of the continent of Europe generally lay down the position that provisions are not contraband of war, unless destined to a place besieged or blockaded.(1) In regard to this article, and also cloth, hemp, saddles, harnesses, and other articles used for ordinary purposes prises, a. 11. of necessity, convenience, or luxury, as well as in military and naval equipments, Sir William Scott considers their character, as contraband of war or not, to depend upon the place to which they are destined. If they are going to a belligerent port, where articles of the same kind are used for warlike purposes, (2) The Jonge he considers them contraband of war.(2) It has been held by Margaretha, 1 the same judge that a war renders trade by a neutral between a Rob. 189; belligerent country and its colonies contraband, at least, where Margaretha, 6 the trade is not permitted to the neutral nation in time of Rob. 92; The peace;(3) and in general he considers the circumstance, that Zelder Rust, the goods are not exported from the country in which they were (3) The Em- produced, as an ingredient in their contraband character.(4) The Frau 6 Rob. 93. manuel, 2 Rob. 198. (4) The Jonge Margaretha, 194; The Jonge Tobias, 1 Rob. 329. (5)2 Val. 264, tit. des prises, a. 11. Robin son's Col. Cas. 77; Rhinelander, 120, & 487. The writers and courts of countries more frequently neutral than belligerent, and of countries of small naval power, maintain, on the other hand, that the principle of contraband trade should be very strictly confined to warlike implements and munitions, and supplies evidently intended for military purposes. It is not easy to point out any specific distinction between the principles assumed by the respective parties in this controversy, who disagree only respecting the application of the same general principles to particular articles, or to certain kinds of trade. The character of many articles, in this respect, depends upon a variety of circumstances, and though the general principles, by which they are to be distinguished as contraband or not, should be perfectly well settled and agreed upon, yet great room will unavoidably be left for the exercise of the arbitrary discretion of the judge, in allowing more or less weight to positive testimony, the circumstances of each particular case, and the political relations of the parties. Every kind of property belonging to the subject of a neutral state, destined to a blockaded port, or besieged town, is contraband of war.(5) Chief Justice Parsons says, 'We know of no case, where a neutral merchant has been punished by his own sovereign, for his contraband shipments.'(6) He says there is no distinction in this respect between an interloping trade, and a trade in articles contraband of war, and the same opinion seems to be entertained in New York,(7) and it is universally held to be no violation of the laws of one country, for its subjects to carry on an interloping trade in another. It is said that this right of the neutral to evade a blockade, and to trade in articles contraband of war, is similar to his right to transport the goods of a bellige rent which the other belligerent may seize, and he may detain and carry the neutral vessel into port for the purpose of making a seizure of the goods. But there seems to be this distinction between a trade in articles contraband of war, and an interloping trade, that one exposes the goods to condemnation under the |