No. 61. Aubert v. Gray.— Notes.

strength of a notion so purely theoretical. This is the first time, I believe, in which this question has come before an American Court; and I have, for that reason, dwelt upon it longer than was necessary for the purposes of the case which we are now deciding."

This decision was affirmed in 2 Wendell, 64, where the Court, in regard to the point "that the assured cannot recover for an act done under the authority of his own State," considered that it was not in the case, and that "there is a peculiar satisfaction in being relieved from the investigation and decision of the point. I have looked into it sufficiently to discover that it is one of great difficulty, and in reference to which the decisions of the English Courts cannot be relied upon, as well from their own contradictions as from the peculiar political principles which control that government and its Courts. It is identified with great principles of civil liberty, and with the fundamental doctrines of the reciprocal rights and duties of governments and their subjects, which have furnished themes for copious illustration by the statesmen and jurists of the world. Upon all these questions the statesmen of our own country have maintained opinions which have been combated by those of foreign countries, but which, I doubt not, will one day become the law of this country. At present it is as unnecessary as it would be presumptuous in me to attempt to ascertain and define the existing law in respect to the question how far and in what cases a citizen is bound to look to his own government only for redress for injuries committed by the judicial, legislative, or executive departments, within the scope of their authority."

The same view was taken, obiter, in Delano v. Bedford Ins. Co., 10 Massachusetts, 351, 352, where the Court said: "An embargo is a restraint and detention by public authority, and may be considered as within the import of the clause in question." For every purpose of the present inquiry, the embargo by the law of the United States has been considered as a loss within the policy, if any restraint or detention would be." "A restraint and detention by an embargo has been determined to be a constructive total loss." But the Court restrict the privilege of the assured to abandonment, and this is held in Ogden v. N. Y. F. Ins. Co., 12 Johnson (N. Y. Ct. of Errors), 25; McBride v. M. Ins. Co., 5. Johnson, 299.

The matter was considered by KENT, Ch. J., in McBride v. Marine Ins. Co., 5 Johnson (N. Y.), 308, a. d. 1810, where he said: "There is no decision in the English books which comes up to the question, though the uniform language of the cases, and of the writers on insurance, is in favor of the right of the assured, in a case like the present, to abandon and recover. They make no distinction between a foreign and a domestic embargo."

"In addition to this, we have a very respectable authority at home on the point now presented. I allude to the case of Ollin v. The Insurance Company of Pennsylvania, in the Circuit Court of the United States (Hall's Law Journal, Vol. II. p. 221). Judge WASHINGTON went through all the cases that bear upon the question, and examined it, upon principles of law and public policy, and concluded that the assured had a right to abandon, and claim a total loss. After the clear and masterly view of the subject which was taken in that case, it becomes unnecessary to examine it here at large; and I think that I need not do much more than to declare that I yield my full assent to that opinion.

"An embargo is not required to be, upon the face of the act, definite as to time. It is frequently otherwise; and the case of the British embargo on vessels bound to Leghorn, as stated in Hadley v. Clarke (8 Term Rep. 259), is a pertinent and strong instance of the kind. But it is, from the very nature and policy of the measure, a temporary restraint. It suspends, but does not dissolve, the contract of insurance, any more than the contract to carry goods. The error of the counsel for the defendants consists in considering the embargo imposed by Congress as a permanent prohibition, working a dissolution of the contract. We must judge of the act from what it purports to be, and from the terms which it uses. An embargo, ex vi termini, means only a temporary suspension of trade. A general and permanent prohibition of trade would not be an embargo. It would be an act too violent to be endured, and is not to be presumed. It is equally a very forced argument to liken this case to a contract to do an unlawful act, or to perform an illegal voyage. The voyage commenced before the law existed. It was not the object of the policy to violate any law. It had a contrary tendency. It was to indemnify against arrests and detentions, and not to indemnify for resistance to them. The policy of the State,' as Lord ALVANLEY observed, 'is not concerned in preventing one British subject from insuring another against the effects of an embargo laid by the British government.'

"The counsel referred to some recent decisions in England, arising under our embargo, and which are reported in the addenda to Park (6th ed. p. 609); but they will not be found, on examination, to have declared a different rule of law, as applicable to this case, from that which we deem the correct one. The Court of K. B. decided that an American citizen could not recover from a British underwriter, under an abandonment founded upon our embargo, because every American subject was to be deemed a party to the Act of Congress, and shall not be permitted to indemnify himself at the expense of a British subject, for a loss arising from his own act. This is similar to the reasoning suggested by Lord ALVANLEY, in the case of Touteng v. Hubbard (3 Bos. & Pull. 291), and it appears to be drawn from political considerations rather than from principles of law. Whether the Courts of this and of other countries would or would not adopt a similar rule, under similar circumstances, we need not now discuss. It is sufficient in this case to say that the rule is not applicable. Lord ELLENBOROUGH admits that where the insured and insurer are both subjects of the same State, the question will stand upon very different grounds of consideration.' And, indeed, in Page v. Thompson (Park, 6th ed. 109) he is said to have ruled differently, that being a case between British subjects. When both parties belong to the same government, the act of the government is as much the act of one party as of the other, and each ought to be equally estopped from taking advantage of it, to the prejudice of the other. To consider it as amounting to an agreement between the two parties to dissolve the contract would be pushing the doctrine to an extravagant length. A domestic embargo would, upon such a refined principle, dissolve all contracts of affreightment and for wages, contrary to the settled rule both in England and France."

Of this matter Mr. Duer says, citing Conway v. Gray (1 Insurance, 351):

No. 62.- Rich v. Parker. - - Rule.

"As a general rule, the effect of a subsequent law prohibiting the acts necessary to the performance of a contract, already made, is to dissolve the contract without prejudice to either of the parties; but from this rule the operation of an embargo upon a subsisting policy is an exception. Where the voyage, insured by a policy at and from the port of departure, is rendered illegal before the policy has attached, by a law of revenue or trade, or the provisions of a treaty, the contract is annulled, without any right to the assured to claim an indemnity, or even, generally speaking, a return of premium; but the defeat of the voyage by an embargo after the policy has attached is not considered as a dissolution of the contract, but as a loss by a peril insured against, entitling the assured, upon an abandonment, to a recovery of the whole sum insured. It is a total loss by an arrest or detainment of the government, and as such is covered by the express words of the policy. When it is certain that the embargo will be of short duration, the assured may elect to consider the voyage, not as defeated, but suspended, and may resume its prosecution under the policy, when the temporary restraint is removed. But although the contract of insurance is not dissolved so long as the vessel remains in port, yet should she sail, or attempt to sail, in violation of the embargo, this act of positive illegality, whether followed by a seizure or not, I cannot doubt, would avoid the policy, and discharge the insurers. That, in the event of a seizure, they would not be liable is certain." See Odlin v. Ins. Co., 2 Washington (U. S. Circ. Ct.), 312.

A WARRANTY of the neutral or national character of a ship is sufficiently expressed by the description of the ship on the face of the policy as "an American," &c.; and, in . order to comply with the warranty, the ship must be furnished with the proper documents to establish her character to be entitled to immunity according to the law of nations or any special treaty to which the government of the country to which the ship is stated to belong is a party.

No. 62. — Rich v. Parker, 7 T. R. 705, 706.

Rich v. Parker.

7 Term Reports, 705–711 (4 R. R. 552).

Insurance. Express Warranty.-Nationality of Ship.- Ship's Papers. A warranty in a policy of insurance that the ship is American prop- [705] erty means that the ship is entitled to all the privileges of an American flag; and if she has no passport on board (which is required by the treaty between France and America), the warranty is not complied with, and the assured cannot recover against the underwriter, though in fact the ship suffers no inconveniences in the voyage from the want of the passport.

This was an action on two policies of insurance, one on the ship the Atlantic, the other on goods on board her, from London to Guernsey, from thence to the coast of Africa, during her stay and trade there, and at and from thence to her port or ports of discharge in all or any of the British West India Islands

and America. The ship and goods were warranted to be [* 706] American property. The plaintiff averred that the ship

and goods were American, and then stated that the ship sailed from London to Guernsey, and from thence to the coast of Africa, where she was captured by an enemy.

The defendant pleaded the general issue, and on the trial before Lord KENYON, at Guildhall, a special verdict was found; which (after stating the making of the policies, the sailing and capture of the ship as set forth in the declaration) stated that the ship, the Atlantic, was an American ship and the property of the plaintiff, a native and citizen of the United States of America, and that the goods were American property. It then set forth the treaty between France and the United States of America, in 1778; in which it was agreed (inter alia) that the ships and vessels belonging to the subjects of the other ally must be furnished with sea-letters, or passports, expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the ship, that it might thereby appear that the ship really and truly belonged to the subjects of one of the parties; which passport should be made out and granted according to the form annexed. And it was further agreed that if the ships of the subjects of either of the parties should be met with, either sailing along the coast or on the high seas, by any ships of war of the other, or by any privateers, the ships of war

No. 62. Rich v. Parker, 7 T. R. 706, 707.

or privateers, for the avoiding of any disorder, should remain out of cannon-shot, and might send their boats on board the merchant ship which they should so meet with, and might enter her to the number of two or three men only, to whom the master or commander of such ship or vessel should exhibit his passport concerning the property of the ship, made out according to the form inserted in that treaty. And that the ship, when she should have shown such passport, should be free and at liberty to pursue her voyage, so as it should not be lawful to molest or search in any manner, or to give her chase, or to force her to quit her intended course. The verdict then stated, that before and at the time of sailing of the ship, &c., this country was engaged in a war with France; and that the ship when she so sailed from London on her voyage for Guernsey had not on board any sealetter or passport made out and granted for her according to the form annexed to the treaty; but that at the time of her sailing from Guernsey and from thence continually, afterwards, [*707] until, and at the time of the * capture she was furnished with and had on board her such a sea-letter or passport, &c., and which was exhibited and shown at the time of her capture and loss, by the master of the ship, to the commander of the French privateer. But whether, &c.

Park, for the plaintiff, after stating the question to be, whether or not the warranty in the policy, that the ship and cargo were American property, had been complied with, argued in the affirmative. Whether or not a warranty has been complied with is a question of fact to be established by evidence; now here that fact is expressly found by the jury, and that precludes all further argument. The defendant however insists that the ship was not American, because she had not the passport on board during the former part of the voyage. But, in the first place, the passport was on board before, and at the time of the capture; and it does not appear that the ship suffered the least inconvenience or interruption from not having it on board when she sailed from London to Guernsey. And in the next place, the want of that passport neither negatives the warranty that the ship and goods were American, nor was it a cause of seizure or confiscation either by the law of nations or by the treaty between France and America. Whether the ship were or were not American is one question, whether or not she had the passport on board is another, not