Bulkey v. Derby Fishing Co.

1 Conn. 571

• Court: Supreme Court of Connecticut
• Decided: June 15, 1816
• Status: Published

Opinion

Swift, Ch, J.

It appears that two of the plaintiffs were owners of the vessel insured : and that the plaintiffs were all in a copartnership and owners of the cargo. This is a sufficient; interest in them to enable them to maintain an action on the policy.

In respect to Admiral Sawyer’s licence, a witness testifies that he saw on board the vessel a licence purporting to be Sawyer’s licence ; that he had seen a number of them ; and that this was in usual form. This writing need not be proved as a written instrument: it may be proved like any other matter of fact, or any other thing required to be on board the vessel. I am therefore of opinion, there is sufficient evidence that the vessel insured had on board a licence from Admiral Sawyer.

But the material question is, whether the licence from Admiral Sawyer did not render the voyage illegal, and vacate the policy.

It is indisputable, that all trading or private intercourse with the enemy is unlawful ; and that all contracts founded thereon are void. If a licence had been obtained by the plaintiffs directly from the enemy, it would have rendered the voyage illegal. But here was no intercourse or contract with them : the voyage was fairly intended to a neutral port, and was lawful. There was no agreement to procure a licence from the enemy. It was obtained by a public minister of the neutral nation to whose territories the voyage was intended. It is opposed to no principle of policy to admit an application to a neutral power, to obtain a protection, for a neutral voyage, from a belligerent power. There is no rule of the law of nations prohibiting it, and there never has been a decision that a voyage thus protected was illegal : of course, the licence cannot render the policy void.

The fair construction of the warranty contained in the policy with respect to the licence, is, that a licence from Admiral Sawyer should be furnished of such form as should purport to he a protection of the vessel and cargo for the voyage, it would he unreasonable to say, that the plaintiffs might put on hoard a cargo which would defeat the effect of the licence. It appears that the licence was for a cargo of dry provisions ; and the cargo in the vessel insured consisted both of wet and dry provisions. This would be no compliance with the warranty, unless it could be further shewn, that there was no other form of licence from Admiral Sawyer, and that the usage of merchants, and the understanding of the parties, was, that such licence was the only one required, whatever might be the cargo, or that the insurers had knowledge of the cargo put on board the vessel. On this ground, the plaintiffs are not entitled to recover, without further proof.

In this opinion Trumbull, Edmond, Smith, Brainard and Goddard, Js. concurred.

Hosmer, J.

There is no controversy, at the present day, concerning what shall amount to an insurable interest. Not only the absolute owner may legally have the indemnity of a policy, but he who has merely a qualified property. The trustee may insure ; and so may the cestui que trust. Even a reasonable expectation of profit will constitute that sort of interest which may be protected by an insurance. 1 Marsh. Ins. 105. 107. (Condy’s edit.)

What shall amount to the proof of an insurable interest, is equally well established.

Documents, evincing the property of the ship or cargo to be in the insured, undoubtedly constitute the best evidence. If this species of proof is deficient, the deficiency may be supplied by parol testimony. The exercising acts of ownership in directing the loading, &c. of the ship, and paying the people employed, is adequate evidence of property in the ship. In short, “ the mere fact of possession as owners is prima facie evidence of ownership, without the aid of any documentary proof or title deeds on the subject, until such further evidence should be rendered necessary in support of the prima facie case of ownership made, in consequence of the adduction of some contrary proof on the other side.” Robertson & al. v. French, 4 East 136, 7. Amery v. Rogers, 1 Esp. 208. M’Andrew v. Bell, 1 Esp. 373. It is almost superfluous to add, that in this case, the plaintiffs have adduced sufficient proof of an insurable interest.

It has been objected by the defendants, that a passport, commonly called “ Admiral Sawyer’s licence,” was on board the ship insured ; and that this rendered the voyage illegal, and annulled the policy.

The proof by law required to establish the existence of the licence, admits of no question. In this, as in every other instance, the best evidence the nature of the case allows, is indispensable. A paper having been on board the ship, purporting to be a licence, infers no presumption of its own authenticity. Even as to the complete and genuine papers with which every ship must be provided, the master should be acquainted with their truth, and capable of verifying them on oath. But, in respect of a document, not ordinarily found on board of ships, and making no part of their usual muniments, strict proof should be required. The established rules of evidence demand, that the seal of Don Onis should be verified by some witness who saw him affix it to the licence, or who knows it to be his seal. It is not judicially known. Even a judgment obtained in the island of Grenada, certified by the judge of the court, and whose hand-writing was proved, was held not to be established, because the seal of the island affixed to it, had not been verified by testimony. Henry v. Adey, 3 East 221. What is more to the purpose, the seal of Don Onis, like that of every other individual, must be established by the evidence of witnesses. If he is viewed as a public character, his seal must be proved, because it is not by law recognized, and can only be evinced like every other fact. The witness must be capable of testifying, not merely that he has seen many similar papers, which were called Sawyer's licences, but that he knows the seal by which the licence is authenticated.

The testimony of Miller, if believed, establishes the existence of the licence, as having been “ under the seal of the Spanish minister,” and that it was on board the ship, at the time of her capture. He further testifies, that it was taken, and has been withheld by the captors. This fact shows, that the paper is inaccessible, and that parol evidence is the best proof, of which it is susceptible.

If the licence rendered the voyage illegal, there exists no doubt, that the policy made to protect the insured, is void. The illegality of the transaction is the sole point, on which this part of the case depends.

It is incontestibly established, that all commercial intercourse with a public enemy is unlawful. Potts v. Bell, 8 Term Rep. 548. The Brig Joseph, 1 Story's Dec. 545. It is equally clear, that trade to a neutral port is not illegal, although the enemy may derive benefit from it, unless it be carried on in connexion with, or subservient to, her interests. The Ship Liverpool Packet, 1 Story's Dec. 513. An American ship, however, destined to Spain and Portugal, with provisions, for the use of the allied armies on the peninsula, sailing under a licence obtained from the public enemy, was most justly condemned. The Julia, 1 Story’s Dec. 594. The licence made no essential difference. The supplying the enemy with articles of necessary sustenance, was a high offence, and incapable of vindication.

I readily admit, that a licence obtained, through a neutral, from the public enemy, may either per se, or in connexion with the circumstances accompanying, furnish conclusive, or presumptive, evidence of an illegal transaction. I think it is equally apparent, that the voyage, the cargo, the place of destination, the passport, and every attendant fact, may convince the mind, that the only object of the merchant, was to obtain protection in the fair pursuit of neutral trade. Considerations of this nature are always open to the court, who will pronounce on the real intent of the transaction.

The great question yet remains, whether a licence obtained through a neutral, from the public enemy, per se renders the voyage illegal. I put out of the case, everything which has been said, relative to the sailing under the flag of the enemy. The Vrow Elizabeth, 1 Rob. 10. The flag is an essential characteristic of property, and equivalent to the most explicit declarations on that subject.

It never has been legally determined, that a voyage is made unlawful merely and exclusively from there being an enemy’s licence on board a ship, destined for a neutral port. I am well aware of the obiter opinion, expressed by the learned Judge, in the case of the Julia ; but as it was not called for in that action, it possesses no legal authority. At the same time, a respectful deference for sentiments emanating from so high a source, if unopposed, would impair the confidence I should otherwise have in my own. But in the case of the Matilda, 4 Hall’s Amer. Law Journal, p. 478. 487. it was decided by the Chief Justice of the U. S. that the licence of a public enemy, did not, of itself, render the voyage illegal. The usage of merchants on this subject, the silence of courts, and the recent determination alluded to, require urgent arguments to evince, that a voyage is rendered illegal, merely from there being an enemy’s licence on shipboard. Those which have been relied on, I will briefly examine.

It has been said, that licences being the subjects of purchase, increase the resources of the enemy. This remark, if it presented a full view of the case, would be among those small things, which rather tend to shew the weakness than force of the argument. But, the truth is, it exhibits a small part of it only. The resources of our country, through the protection afforded by licences, may be much enlarged ; the commodities which the public exigencies demand, acquired ; the produce perishing on hand, disposed of; and the national wealth augmented. By adding a trifle to the resources of the enemy, we, perhaps, quadruple our own. “ The sound maxim of policy,” (says a great Judge) “ is this, that a greater evil should be avoided for a less, and a less good should give way to a greater.” 1 Cowp. 6.

It has been argued, that the procurement of licences from the public enemy produces an intercourse with him, which may be abused to the worst purposes. Without stopping to examine by the balance this observation, the amount of which is not easily ascertained, it suffices to remark, that it is entirely inapplicable to the purchase of a licence from a friendly neutral. In the latter case, there is no intercourse with an enemy.

It has been contended, that if a licence is granted by an enemy, as a measure of policy, to obtain a supply of the necessaries of life, it would be exceptionable to sail under its protection. I admit the justice of the remark, if these facts are superadded ; that an individual contracts to supply the enemy, and resorts to this mode of shelter from molestation. But, suppose the enemy, prompted by selfish views, were, by a general law, to sanction neutral trade, or by the hands of a neutral friend, were profusely to scatter their licences ; would it be within the jurisdiction of courts, to balance the arguments of national policy for and against commerce, and to act in conformity with the result ? I am of opinion it would not, and my reasons will be stated in a subsequent part of the argument.

It has been said, that a licence granted implies an agreement that it shall not be employed to the injury of the grantor, and that ail hostility with him shall be avoided. Hence, that the American citizen must be neutral on the ocean, while his country is at war. The objection implied in this remark, lies against a general permission by the enemy to trade with neutrals. The neutrality of the merchant on the ocean is implied, and such will he the fact. The persons making the objection admit, that neutral commerce would not be affected, by the general permission abovementioned. But, why should importance be given to an an argument of so little force ? The business of a merchant ship is commerce, and not battle. The benefits derived from commerce, equally with those accruing from agriculture and manufactures, abundantly compensate the nation, for the few hands which are not permitted to wield the sword.

The subject, when stripped of all the covering, which plausible argument and specious eloquence may put upon it, rests on this narrow ground. Commercial intercourse with an enemy, directly or indirectly, is unlawful. An enemy’s licence to trade, with accompanying circumstances, may furnish satisfactory proof of illicit commerce, on the fairest presumption of a bona fide neutral trade. Hence, a licence of itself, if nothing on the face of it tends to a different conclusion, implies no demonstration of illegal views. The enquiry always, from the very nature of the thing, must be, a question of fact. If the court is satisfied, that a fair neutral intercourse was intended, the transaction will be considered as legal; if a trading with the enemy, as unwarrantable.

Finally, the question whether a licence to trade shall render a voyage illegal, embraces the highest political interests of the country. Prohibiting the use of it, pertains peculiarly to that legislature, with which such interests are specially confided. The wants of the country, may render the protection of licences of the highest importance; and the enlightened statesman may see, that from the “ seeming evil” of them much good is educed. On the other hand, it may be equally apparent to him, that under the existing state of things, they are productive of little advantage, and much positive mischief. To the national legislature, then, it belongs, on principles of political expediency, to prohibit licences, when they are detrimental to the country. But, the judiciaries, in my judgment, have no jurisdiction to decide upon a question so peculiarly of legislative cognizance. The late act of Congress, 12th vol. p. 225. by forbidding the sailing under a licence from the public enemy in future, comports with the opinion I have expressed.

One enquiry yet remains. The policy of insurance, on the face of it, has a warranty by the insured, in these words ; “ Warranting her to be furnished with a passport from Admiral Sawyer in the usual form.” The cargo of the ship Charles, consisted of wet and dry provisions. The licence alone purported to protect American vessels, loaded with dry provisions only. What, then, is the construction of the warranty, and what its effect?

A warranty, like every other part of a policy, must be construed according to the understanding of merchants, and does not bind beyond the commercial import of the terms. 1 Marsh. Ins. 347. a. (Condy's edit.) In this case, the warranty can mean no less than this ; that a genuine Sawyer’s licence, purporting to cover the voyage and cargo insured, shall be on board the ship. Security from capture by British cruisers, so far as that was attainable by a passport from Admiral Sawyer, was the undoubted object of the contracting parties. But, the licence proved imported no security, and conferred no protection. A comparison of the ship’s cargo with the licence, by the commander of a cruiser, would furnish testimony infallible, that the property was unprotected. “ If a ship, for want of a necessary document, merely subject herself to be carried into the port of a belligerent, she falsifies the warranty.” 1 Marshall, 321. It was the stipulation of the insured, and nothing short of it could be intended, that the ship should be protected by the licence ; and this necessarily implies a protection of every part of the cargo. The proof exhibited shows a noncompliance with the warranty.

It clearly results, that the policy never was obligatory on the insurers. 1 Marsh. Ins. 346. a. 347. a. 348. Cowp. 787. If the insured were prevented from obtaining a licence, covering the cargo, by an utter impossibility, it is their misfortune, but, imposes on the underwriters no additional obligation. The contract is the standard, by which the rights of the parties are to be estimated. Co. Litt. 206. 2 Black. Comm. 154. 157. 1 Marsh. Ins. ub. sup.

Gould, J.

As the case is presented to the court, there is one particular, in which I think the warranty has not been complied with. I refer to the cargo’s not corresponding with the licence. Upon the other points, urged for the defendants, it is not necessary to decide ; though, as at present advised, I do not perceive, that the case is embarrassed by any of them. It is true, that the intended cargo is not described, either in the warranty, or the policy. But, in my judgment, a warranty, that the ship shall be furnished with a pass, or licence, (the object of which is certainly the protection of a cargo of some kind,) implies prima facie, at least, that the document shall be such, as shall import to protect the cargo, that may be put on board. And this implication must, of course, prevail, unless it be rebutted, as, perhaps, it might be, by some general usage of trade, or some special agreement, or understanding of the parties, to the contrary. In the present case, nothing of this kind appears ; and the pass extends, in its terms, only to flour, and other dry provisions : whereas the cargo actually consisted, not of those articles only, but of many others also, of an entirely different description. It is manifest, then, that the licence, supposing it to have been genuine, and authoritative, would not, according to the terms of it, have secured this cargo from capture ; in which event the ship also would be liable, of course, to condemnation. But, whether, in any case, the risk is actually increased, or not. by a breach of warranty, is not material. The stipulation is in nature of a condition precedent, and must be strictly complied with. And as this does not appear to me, from the facts before the court, to have been done, in the present instance ; the plaintiffs have failed, in my opinion, to establish a right of recovery.

Note. The following cases in the Supreme Court of the United States, referred to by the counsel for the defendants, ante p. 575. have since been reported at length, viz. The Julia, in 8 Cranch 181. ; The Hiram, in 8 Cranch 444. ; and The Aurora, in 8 Cranch 203.

Baldwin, J. being interested in the cause, gave no opinion.

Another trial to be had for further proof.