66 capture," ""detention of princes," or the like, which could not, consistently with law, be specifically insured in direct and express terms." In the next case of Gamba v. Mesurier (a), on the same day, Lord Ellenborough also delivered the judgment: the principle of the case is similar to the preceding one, viz.— "that an underwriter on French property in time of war, was not liable for loss occasioned by capture by the king's ships during hostilities, which commenced between Great Britain and France subsequent to the policy being made, and terminated before action brought." And on the same day judgment was delivered by the learned Chief Justice, in the case of Brandon v. Curling (b), in which case it was held by the Court, "that an insurance on goods from London to Bayonne in France, shipped on board a neutral ship, on account of and at the risk of Frenchmen, before the declaration of hostilities between Great Britain and France, but exported afterwards, could not be enforced against the underwriter, even after the restoration of peace, to recover a loss by capture of a cobelligerent (not stated to be an ally) during the war. And they held, that every insurance on alien property by a British subject, must be understood with this implied exception, that it shall never cover any loss happening during the existence of hostilities between the respective countries of the assured and assurer." And not long after these cases, the case of Lubbock and another v. Potts (c), came before the Court of King's Bench; and the judgment was delivered by Lord Chief Justice Ellenborough: and the Court held in this case that, "colonial produce could not legally be shipped from the British West Indies for Gibraltar, and therefore the same could not be insured on such a voyage." This case is mentioned for the sake of the principle contained in it, viz. ;—that if a certain voyage be prohibited by the laws of this country, the (a) 4 East, 407. (b) 4 East, 409. (c) 7 East, 449. Persons insur of prohibited goods, to forfeit 5002. insurance upon the adventure is illegal also, and therefore void. But this class of cases which depended upon the old navigation laws, and the laws relating to the Customs, so entirely, as to render such cases scarcely worth referring to, after the entire alteration of the former, and annihilation of the latter at this day (a). There are, however, some matters still to be mentioned on this head such are the laws against smuggling. : By 3 & 4 Wm. 4, c. 53, all the laws upon this subject are ing the delivery consolidated in that act: by which it is enacted, that every person who by way of insurance or otherwise, shall undertake or agree to deliver any goods to be imported beyond the seas into any port or place in the United Kingdom, without paying the duties due on such importation, or any prohibited goods; or who, in pursuance of such insurance or otherwise, shall deliver or cause to be delivered, any uncustomed or prohibited goods, and every aider and abettor of such person, shall for every such offence, forfeit the sum of 5007. over and above any other penalty to which he may be liable; and every person who shall agree to pay any money for the insurance or conveyance of such goods, or who shall receive or take such goods into his custody or possession, or suffer the same to be so received or taken, shall also forfeit 500l. over and above any penalty to which he may by law be liable (b). The like penalty on the assured. but intended to Where part of It would seem that if part of a cargo be illegal, and the a cargo is legal, rest of the goods, though legal, are intended to cover an cover an illegal illegal design (c), or if the contract be entire, and cannot be design, the whole policy severed, the illegality of the part will vitiate the whole policy. But if a portion of the subject-matter be entirely free from the illegality, and there be no fraud extending to it, the policy is divisible, and will protect the legal part of the is void. But if part of a cargo be licensed, an insurance of (a) See the Navigation Act of 3 & 4 Wm. 4, c. 54. And see the act, 5 & 6 Vict. c. 47 (altered and amended by 8 Vict. c. 12), passed 8th May, 1845. (b) Sect. 47. See also 4 & 5 Wm. 4, c. 13; 4 & 5 Wm. 4, c. 189. (c) See Gordon v. Vaughan, 12 East, 302. Ante, p. 647. cargo; and therefore it was held that a cargo licensed might be insured, and the insurance of part is not vitiated, though the other part of the cargo is not licensed and illegal (a). And where a license was granted to export gunpowder, and more was exported than was specified in the license, the exportation of the excess only was held to be illegal; and therefore an insurance on the whole cargo was supported as to so much for which the license was obtained (b). But, in the case of Parkin v. Dick (c), where an exporta- Where an tion from this country was protected by a valued policy on exportation was protected goods to be thereafter specified, and the specification after- by a valued policy, the wards made included some goods, the exportation of which was goods to be prohibited under the penalty of forfeiting the goods and the ship in which they were exported, the Court of King's Bench held the whole adventure to be illegal and the policy entirely thereafter specified, and the specifica tion contained. prohibited goods, the contract was whole void. void. Lord Ellenborough observing "it is an illegal act and subjects the ship itself to forfeiture. The policy is one entire entire, and the contract on goods to be thereafter specified, to which the underwriter subscribed: and the subsequent specification by the assured cannot alter the nature of the contract with respect to the underwriters so as to sever that which was one entire contract. It has been decided a hundred times that if a party insure goods altogether in one policy, and some of them are of a nature to make the voyage illegal, the whole contract is illegal and void." And in the case of Camelo v. Britten (d), where the license was held void on account of the condition not having been complied with, although the subject-matter of the insurance consisted of various articles besides the gunpowder, still it was considered that the policy being one entire contract, it was wholly void. A sentence against a neutral by a British Vice Admiralty Court, is sufficient evidence from which to presume that the ship had been engaged in some illegal transaction. A neutral meeting by agreement a British vessel, for the purpose of receiving gunpowder and arms, is illegal, even though the latter should have had a license to export them for the purposes of trade (a). SECTION III. OF NON-COMPLIANCE WITH WARRANTIES. WE come now to notice another important instance in which the assured may forfeit the insurance which he has made to secure himself against the perils insured against by the underwriters, and this is where he makes an express condition or warranty of some fact or circumstance, or binds himself, that a certain condition shall happen, otherwise he is to lose the benefit of his contract. This condition by which the assured binds himself that it shall be performed, is independent altogether of the contract which I endeavoured in the first part of this Treatise to explain the principles of; and it was there said, that there was an implied condition by law, that the assured could not escape from, viz., that his ship should be seaworthy and properly equipped for the voyage; but having done that, he makes no assurance that his ship is safe at the moment of the insurance (b); he is bound to give the underwriter all the account he knows of her, but, as Lord Mansfield says, " that although the assured ought to know whether the ship was seaworthy when she set out on her voyage, yet he may not be able to know the condition she may be in, after she has been out a twelvemonth." There is also an implied condition by law, that the loss shall not happen through the fault of the assured; if his conduct is such as to cause either a forfeiture of the ship to (a) Gibson v. Mair, 1 Marsh. 39, and Gibson v. Service, 1 Marsh. 119 (b) See Motteux v. London Assurance Comp., ante, p. 200. a foreign state, or to occasion the loss of it by his own act, the underwriter is not liable. But it is a very different thing where he chooses to bind himself to a condition or warranty, that something is the fact, as he represents, or that something is to be done by him. By the law of England, such a condition must be complied with, or it works the entire failure of the contract. Lord Eldon, in the case of the Newcastle Fire Insurance Company v. Macmorrow (a), says:-" It is a clear and first principle of the law of insurance, that where a thing is warranted to be of a particular nature, or description, it must be such as it is stated to be. It is no matter whether it be material or not; the only question is, 'is this the thing de facto that I have signed."" And therefore it has been held in the case of Harrison v. Douglass (b), that an underwriter in an action on a policy, after paying money into Court, cannot rely on a breach of warranty for the payment admits that the assured has a right to recover something, which he could not do if there had been a breach of warranty. Ship" warrantparticular day" ed well on a insured" lost or not lost," the policy was underwrote and three So in the case of Blackhurst v. Cockell (c), which was an action on a policy of insurance" on goods," from the lading of them on board the ship at London to Liverpool, "lost or not lost:" at the bottom of the policy was added, "warranted well, December, 9th, 1784." At the trial before Lord at between one Kenyon, at Guildhall, it appeared that the underwriter underwrote the policy between one and three in the afternoon, and that the ship was lost about eight o'clock that morning. A nonsuit was entered, with liberty to the plaintiff to move to enter the verdict for him: Lord Kenyon, "The single question is, whether the warranty at the bottom of the policy means at the time when the defendant subscribed it, or any time that day? And we are all of opinion, that if the ship be well at any time that day it is sufficient." Buller, J.-" The nature of a warranty goes a great way to determine this question. It is a matter of indifference o'clock in the warranty is safe at any part of that day. (a) 3 Dow. 255. (b) 3 A. & E. 306. (c) 3 T. R. 360. |