the exception put by Lord Mansfield is added, namely, that the infured fhall not answer for the fufficiency of the fhip, after fhe has been out a confiderable time. The probability is, that the counfel laid down the propofition in more extenfive terms than the reporter ftates it, namely, that if the fhip was not fea-worthy at any time during the voyage, the infurers would be difcharged. By admitting this prefumption, the whole will be eafily reconciled; for then Lord Mansfield's denial of fuch extenfive doctrine is fupported and illuftrated by the diftinction, which he afterwards takes in the conclufion of the fentence. It is fingular, that the decifion, which has occupied the whole of this chapter, fhould have occalioned fo much difcuffion at the time it was determined, as that pamphlets were written upon both fides of the queftion; efpecially when it is confidered, that the doctrine there eftablifhed is by no means novel in itfelf, and is entirely confonant to the laws of all the maritime and commercial nations in Europe. In the ordinances of Lewis the fourteenth it is Ord of Lew. declared, that decay, wafte or lofs, which hap- 14th, tit. inpens from the internal defect of the thing infured, fur. art. 12. hall not fall upon the underwriter. A commen- 2 Val. 80, tator upon thefe ordinances has gone into the reafon and principle of fuch a regulation, and has fhewn the propriety of it. He fets out by obferving that this doctrine is of a date as ancient as the period when the French treatife called c. 5. art. 8. Le Guidon was published, which was about the year 1661, at which time, as appears by a reference to the book itself, it was confidered as a fettled principle, that loffes, happening from caufes of this nature, were not to be a charge upon the underwriter. The fame author 2 Mag. 9o.. has alfo fhewn, that fuch a provifion is adopted 140. in favour of the infurers by the ordinances of 2 Val. 81. Rotterdam and Amfterdam. After stating thefe circumftances, he proceeds to fay, that when a fhip is deemed incapable of finifhing her voyage, the question whether this event is a charge upon the underwriters or not, depends upon another; namely, whether it happened by the violence of the fea, or other fortuitous circumstance, or whether the disability proceeds from age and rottennefs. This will be determined by the enquiry which was made before the departure of the fhip, in order to judge, whether it was in a condition to perform the voyage or not: if the latter was the cafe, the infurers ought not to answer. In 1 Val. 654. another part of his work after laying down the fame doctrine, he declares, that the indemnity will be void, even though the fhip has been examined before her departure, and declared capable of performing the voyage; fince the event has fhewn clearly, that on account of latent defects it was no longer navigable; that is, if it were proved that parts of the fhip were fo rotten, weakened, and deftroyed, that he was not in a proper ftate to refift the ordinary attacks of wind and fea, inevitable in every voyage, then the underwriters are difcharged. The reafon is, that the examination of the fhip before her departure extends only to the external parts, becaule fhe is not unripped; at least not fo as to discover the interior and latent defects, for which the owner or mafter of the fhip continues always refponfible, and that with the greater juftice, because they cannot be wholly ignorant of the bad state of the fhip: but fuppofing them to be fo, it is the fame thing, being indifpenfably bound to provide a good fhip, able to perform the voyage. Pothier Tr. The opinion of this learned foreigner is fupd'Affurance, ported by two of his countrymen, Pothier and Emerigon. n. 66. 1 Emerigon. P. 580. Having thus fhewn that the doctrine of feaworthinefs, as eftablished by the decifions of our courts of juftice, is confirmed by the declarations of foreign laws, and by the opinions of foreign foreign writers; it is fufficient now to fay, that where the fhip is not fea-worthy, the policy of infurance is void, as well where the infurance is upon the goods to be conveyed in the fhip, as when it is upon the fhip itfelf. For when- 2 Val. 164. ever a cafe arifes with respect to damage done to goods through the infufficiency of the fhip, the question, whether the mafter or owner is liable to make good the lofs, depends upon ascertaining, whether the fhip was in a condition to perform the voyage at the time of her departure, or became defective from bad weather, and the perils of the wind and fea. CHAPTER THE TWELFTH. WE E proceed now to the confideration of another circumftance by which the contract of infurance is vacated and annulled ab initio : and it is this; that whenever an infurance is made on a voyage exprefsly prohibited by the common, ftatute, or maritime law of the country, the policy is of no effect. The principle, upon which fuch a regulation is founded, is not peculiar to this kind of contract; for it is nothing more than that which deftroys all contracts whatfoever: that men can never be prefumed to make an agreement forbidden by the laws; and if they fhould attempt fuch a thing, it is invalid, and will not receive the affillance of a court of juftice to carry it into execution. The moft material cafe upon this point is that of Johnston and Sutton, which came on to be argued in the year 17,9, and received the folenn opinion of the Court of King's Bench. Johnston v. It was an action on a policy of infurance on goods, on board the fhip Venus, "loft or not loft, Sutton. at and from London to New York, warranted to Doug. 241. S 4 depart 16 Geo. 3. C. 5. depart with convoy from the channel for the voy age." The caufe was tried before Lord Mansfield at Guildhall, and a verdict was found for the plaintiff. The defendant obtained a rule to fhew caufe why there fhould not be a new trial. The facts, upon his Lordship's report, appeared to be these the ship was cleared for Halifax and New York. She had provifions on board, which fhe had a licence to carry to New York, under a provifo in the prohibitory act of 16 Geo. 3. c. 5. But one half of the cargo, including the goods, which were the fubject of this injurance, was not licenfed, and was not calculated for the Halifax market, but for New York. There had been a proclamation by Sir William Howe to allow the entry of unlicensed goods at New York; and though there were bonds ufually given at the Custom House here, by which the captain engaged to carry the goods to Halifax, thofe bonds were afterwards cancelled, on producing a certificate from an officer appointed for that purpofe at New York, declaring, that they were landed there. The commander in chief had no authority under the act of parliament to ifjue fuch proclamation, or to permit the exportation of unlicenfed goods. The Venus was taken in her paffage to New York by an American privateer. The first fection of the ftatute prohibits all commerce with the province of New York (amongst others) and confifcates all fhips. and their cargoes, which fhall be found trading, or going to, or coming from trading with them. In fection the fecond, there is a provifo, excepting fhips laden with provifions for the ufe of his, majesty's garrifons or fleets, or for the inhabitants of any town poffeffed by his majesty's troops, provided the mafter fhall produce a licence fpecifving the voyage, &c. and the quantity and feecies of provifions; but by the fame provifo, it is declared, that goods not licenfed, found on board fuch fhips, fhall be forfeited. After argument, upon the motion for a new trial, Lord Lord Mansfield faid.--The whole of the plaintiff's cafe goes on an established practice, directly against an act of parliament. If the defendant did not know that the goods were unlicenfed, the objection is fair as between the parties. If he did, he would not deserve to be favoured. But, however that may be, it was illegal to fend the goods to New York, and, in pari delicto, potior eft conditio defendentis. It is impoffible to bring this within the cafes cited (a), because here there was a direct contravention of the law of the land. The rule for a new trial was made abfolute. n. 121. From this cafe much information is to be collected; for, ft. the principle advanced at the beginning of the chapter is established, that is, that an infurance of a voyage, which is prohibited by ftatute, is void, This cafe alfo ferves to remove a distinction, which occurs in a very refpectable writer. The learned Roccus ob- Roccus de ferves, that if fuch an infurance, as that of which Affecurat, we have been speaking, fhould be made, ignorante affecuratore, the infurer is discharged: from whence we are to infer, that in his opinion, if the infurer was acquainted with the nature of the voyage, he would continue liable. But the doctrine of the court of King's Bench overturns fuch a diftinction, because the very contract is a nullity, and a court of justice can never lend its authority to fubftantiate a claim, founded upon a contract which is abfolutely repugnant to the known and etablished laws of the land. Of this opinion is Bynkerhoek, Bynk. Quæft. who fays, that even if it be told to the under- Jur. Pub. writer, that the voyage is illicit, he fhall not be 1. 1. c. 21. bound; because the contract is null and void, and where that is the cafe, the compliance with (a) Thefe were cafes of infurances on fhips trading contrary to the revenue laws of foreign countries, of which more will be faid hereafter. the fub fine. |