Tucker v. Juhel & De Longuamare

1 Johns. 20

• Court: New York Supreme Court
• Decided: February 15, 1806
• Status: Published

Opinion

Thompson, J.

now delivered the opinion of the court. The claim in this case is for a total loss, by capture. The policy provides against subjectingthe underwriters to any loss, which may happen by reason of any illicit, or prohibited trade. The right of the assured to recover, will depend on the question, whether this was an illicit trade. The assured endeavours to bring himself within the permission given, by the proclamation of the 6th of April, 1/99, in the island of Antigua, to allow the exportation of sugars, upon certain conditions.

(Here the judge stated thefacts in the cause, and thenprocceded. J

The opinion given by President Byam, according to the judgment of the court of admiralty at St. Kitts, was erroneous. The revocation, by the commander in chief of the permission of the 6th of April, was general, containing no provision for cases like the present. The advice, and permission of the President, was altogether unauthorised, and the exportation of the sugar illegal. The condemnation, under the circumstances stated in the case, was, I think, extremely rigorous : it purported, however, to be bottomed on a breach of the laws of trade, which, in strict construction, was true. The loss has, therefore, been occasioned by a peril, not within the policy. The underwriters are exonerated from every loss, or damage, which may arise in consequence of a seizure or detention for, or on account of any illicit or prohibited trade. That the seizure and condemnation was on account of a prohibited trade, cannot be denied. The case may be a hard one upon the assured; but his remedy, if any he has, is not against the underwriters. They have, by the policy, expressly guarded against responsibility for losses on this account. The opinion of the court, therefore, is, that the defendants are entitled to judgment.

Postea to the defendants.