Mumford v. Phoenix Insurance

7 Johns. 449

Opinion

[Jones.

It was agreed by the attorneys, that any special counts which the plaintiff thought necessary, should be added to the declaration.]

The act of the master was either a violation of the law of nations, or of a municipal regulation of the government of France. This is not barratry. It does not appear that the conduct was ex malefeio, or for his owii benefit.

I contend that the goods were safely landed, within the terms of the policy. The vessel arrived at her port of destination. The consignees came forward and petitioned to have the cargo landed; and it was landed in consequence of their request. Notwithstanding the provisional seizure, the goods were not, in fact, sequestered, until a fortnight after they had been landed at the request of the consignees. The words in the policy, “ until the said goods shall- be safely landed,” could never be intended to apply to the goods, after they had once touched the land. Suppose they had been consumed by fire, six months after they had been put into the custom-house stores, would the insurers have been liable ? Are they to continue answerable for an indefinite time ? Is sea risk to be converted into land risk ? The consignees having exercised acts of ownership, and procured the landing of the goods, the policy was at an end, and the defendants discharged.

Again, here was a seizure and condemnation for an illicit and prohibited trade. It is true that the Milan. and Aranjuez decrees were hostile and belligerent. But France did not commence her system by an open hostile act. The Berlin decree is not of that character. The 7th article merely declares that “ no vessel coming directly from England or her colonies, or haying been, there since the publication of the decree, should be admitted into any port.” And the 8th article declares, “that' every, vessel, that, by a false declaration, contravenes the 7th article, shall be seized, and the ship and cargo confiscated, as if English property.” It is not liable to confiscation as English property, but 'as if it were English property.

It may be said that as the council of prizes adjudicated, upon this seizure, it was hostile ; but as the decree gives jurisdiction ‘to that court, as if it were English property, they were bound to decide on the case. This decree is a mere municipal regulation. It does not affect the flag or neutrality of other nations. It does not extend to the high seas. It merely affects vessels coming into the ports of Erame.. It is, therefore, a mere prohibition to trade, and is distinguishable from the Milan and Aranjuez decrees. The sentence of the court declares the seizure good and lawful under the decree, but does not contain the word prize, or any language indicating a hostile seizure. The case of Johnston & Weir v. Ludlow

Footnotes

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* will, probably, be cited to show that to constitute a breach of the warranty, there must be an illicit and prohibited trade, in fact; and that it is not sufficient to show a condemnation, under pretext of an illicit trade.. I admit that this decision is, confirmed by the case of Graham v. The Pennsylvania Insurance Company, in the circuit court of the United States for the district of Pennsylvania.† But the words “ for or „„ J ' on account ojf must mean something more than a seizure for an illicit trade, in fact. From the .evidence in the case, it must be taken as a fact that the captain did make a false declaration, in consequence of which the trading at Cherbourg became illicit. The fact having happened, by which the trade under the Berlin decree became illicit, and so declared by the council of prizes, will this court say there was no illicit trade? The facts, according to the proces verbal, were proved by four witnesses; and are they now to be contradicted or explained by the testimony of the captain? If, then, this was a prohibited trade, and the seizure was for that cause, the defendants are discharged.

Hoffman, in reply.

The goods were never safely, landed. When the captain went to the custom-house to make his entry, he declared truly that he had been carried into Plymouth; and in consequence of this declaration there was a provisional seizure of the vessel and cargo. The case states, that at no time were the goods under the dominion of the consignees.

Whether the captain did make a false declaration, or not, is open to examination here; and the fact is positively denied by him. His deposition fully explains the transaction, and shows, most satisfactorily, that he never made such a declaration. But even admitting that he did make a false declaration on board of the guardship, he did not falsify the warranty of neutrality, nor the warranty as to illicit or prohibited trade. The provisional seizure was not made on account of his false declaration at the mouth of the river, but on account of his true declaration at the custom-house. Before the 4th September thé Berlin decree had never been enforced against the Americans. -This ship was the first victim.

But it is said that the Berlin decree is a mere municipal regulation. The preamble shows its true character. It is hostile to Great Britain, and to the gratification of that hostility, it sacrifices all neutral rights. There is no distinction between this and the Milan decree. Both are dictated by the same spirit, and form part of the same system. The principles of both are the same. The latter is only more explicit and. extensive than the former. A condemnation as if it were English property, is the. same as a condemnation as enemy’s property. The case of Craig v. The United Insurance-Company admits that a seizure under the Milan decree would be within the policy. It is for the court to decide whether the Berlin de'cree does not violate neutral rights. If it does, it ceases to be a mere municipal regulation. The question is substantially decided in the case of Speyer v. The New-York Insurance Company.* But if the Berlin decree was a mere municipal regulation, the act of the master must be barratry. For it is ‘ settled, that if the master knowingly violates the laws of the country to which the vessel is destined,, in consequence of which she is seized, it is an act of barratry.

Kent, Ch. J.

That question was discussed in thti case of Strickley v. Delafield.†

Per Curiam.

The seizure in this case was not on ao count of the fact of the ship having come from England. That fact would only have caused the vessel to be sent away. She was seized and condemned with her cargo, on the single ground of a false declaration of the captain, made on board the Stationaire, that he had not been to England. This appears from the proceedings in the French admiralty, and it was, therefore, not a loss “for or on account of any illicit or prohibited trade.” The avowed cause of the seizure arid loss,, being a fraud in the master, distinguishes this case from that of Speyer v. New-York Insurance Company, (3 Johns. .Rep. 88.) to which it would otherwise have been very analogous. The ground of condemnation was proved, upon the trial of this cause, to be untrue and unjust, and it was a charge exceedingly improbable in itself, considering the circumstances at the time. But we have nothing to do here with the pretexts for the condemnation, so long as the loss was not for any illicit or prohibited trade. The. loss came under the general peril of “arrests and detention of princes.” Going to Cherbourg, after having touched at Plymouth, was going to a prohibited port; under the 7th article of the Berlin decree} but the mere entry into that port was not a breach of warranty. If there had been no seizure, and the ship had taken fire and been burnt in the harbour, before the goods were landed, the insurer would undoubtedly have been liable. Seizure for trading or attempting to trade at Cherbourg, contrary to the Berlin decree, would have brought the case within the reach of the warranty. The seizure and condemnation in this case were not made upon that ground; but on the ground of an alleged imposition by the captain; and ,if it be established by the case that the loss did not arise from seizure for a prohibited trade, but from seizure for another cause, the insurer is responsible for the loss.

Judgment for the plaintiff.

2 Johns. Cas. 81.

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Condy's ed. of Marshall, 346, a. 347. in note.

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2 Caines, 223. and see Kendrick v. Delafield. 2 Caines, 67.