1803.

GAMBA et. al. versus

which would be the means of assisting him in war, could only be suspended by the intervention of war; and this contract to indemnify against the loss of a ship, LE MESURIER. Would likewise only be suspended in its performance, but would not be absolutely void. That the performance of it, after the war, was not liable to the same objections, on the ground of assistance to the enemy, and injury to our own government, it would apply to the performance of it during the war.

THE COURT, upon the argument, said, there could be no doubt as to the law, or policy of the case; but they would look into the statutes 34 Geo. III. c. 9 and 79; and this day

Lord ELLEN BOROUGH, C. J. delivered the opinion of the court, in effect, as follows, after noticing that it was in the course of the argument in this case that the point on the construction of those statutes was urged. "The other grounds suggested have not induced us to change the opinion which we had formed; for it by no means follows, that because a particular act was made to prohibit ransom bills, and they were till then permitted to be enforced by an action, an action may now be maintained upon a contract detrimental to the interests of the country; for, as was argued at the bar, they were then considered to be advantageous to its interests. As to the case put by the counsel for the plaintiffs, on a contract to supply the enemy with ships or goods, which would only be suspended by the war, that would not apply to this case, unless the supply were to depend upon the losses sustained during and by the war; and if so, it would be void absolutely, and not merely suspended. For it matters not whether the loss be indemnified during the war, or after the war. The effect of such an indemnity is exactly the sane, whether it be made immediately, or not; for it operates prospectively as an encouragement, and lessens the evils of war to the enemy."

NONSUIT ENTERED,

BRANDON versus CURLING.-Same day.

GOODS are shipped on board an American by a merchant in London, during peace, to a French merchant at Bayonne; before the ship quits Gravesend war is declared; the goods are afterwards seized as prize by the Spanish government, in alliance with Great Britain: Held, that an underwriter on a policy of insurance on these goods, effected before the war, and averring the interest in the French merchant, is not liable for the loss Accruing during the war.

All policies of insurance on foreign interests are to be understood, with a proviso, that they shall not extend to cover any loss occurring in the course of a war between the two nations, to which the assured and insurer respectively belong.

THIS action was brought against the defendant as an underwriter, on a policy of insurance on goods in the ship Greyhound, warranted an American ship, on a Voyage at and from London to Bayonne, and the loss was stated to have arisen by seizure and detention.

At the trial before Lord ELLEN BOROUGH, C. J. at the sittings after Hilary term, a verdict was found for the plaintiff, subject to the opinion of the court upon the following case:

The plaintiff being a merchant, residing in London in the latter end of the year 1792, received orders from the persons averred to be interested in the goods insured, resident at Bayonne in France, to purchase and ship for their account on commission sundry East India piece-goods, which he accordingly purchased for them. These goods were shipped by the plaintiff on board the ship in question (being a general ship) in the port of London, in January, 1793; and on the 4th of February, 1793, the bills of lading were signed by the captain, and on the following day were forwarded by the plaintiff to the consignees of the goods at Bayonne, for whom the same had been purchased and shipped, accompanied by in

1803.

BRANDON

versus

CURLING.

1803.

BRANDON

versus

CURLING.

voices thereof. On the 4th of February, 1793, an order
of council of that date was signed, and on the 9th was
published in the Gazette, which, after reciting,
"that
his majesty had received intelligence that some ships
belonging to his subjects were detained in the French
ports, ordered that no ships belonging to any of his ma-
jesty's subjects should be permitted to enter and clear
out for any of the ports of France, or for the ports of
any country occupied by the armies of France until fur-
ther orders; and that a general embargo or stop be made
of all French ships then within, or which hereafter should
come into any of the ports of Great Britain, together
with all persons and effects on board the said ships; but
that the utmost care be taken for the preservation of the
cargoes on board any of the said ships, so that no da-
mage or embezzlement whatsoever be sustained." The
policy was subscribed by the defendant on the 21st of
January, 1793. On the 11th of February, 1793, the
said ship sailed from London for Bayonne, the captain
having first done at London every thing necessary by
law and the practice of the Custom House to enable her
to sail from London, with an intention of going to Ba-
yonne. On the 13th of February, 1793, she arrived at
Gravesend, and on the following day the captain received
from the scarcher's office there, according to the ordi-
nary and usual course, the cocquet, and other papers,
which are always transmitted from the Custom House
in London to Gravesend, for the purpose of being there
delivered to captains of ships sailing upon outward
voyages, and the ship immediately afterwards sailed from
Gravesend for Bayonne. The order of council, for the
declaration of hostilities between Great Britain and
France, was signed by his majesty's privy council on the
11th of February, 1793, and on the following day was
received by the commissioners at the Custom House in
London. The order of council, declaring hostilities against
France, was published in the London Gazette on the 12th
of February. In the latter end of February, the captain
was under the necessity of putting into Port Passage, in

Spain, and before he could prosecute his voyage to Bayoune, the cargo was seized by officers acting under the authority of the king of Spain, and afterwards condemned as prize. The ship was American, as warranted; and the persons interested in the cargo were French subjects, resident at Bayonne, at the time the goods were ordered, purchased, and shipped, and also at the time the ship sailed on the voyage, and at the time of the capture. The question for the opinion of the court was, "Whether the plaintiff was entitled to recover in this action; if the court should be of opinion that the plaintiff was entitled to recover the verdict to stand; if not, then a nonsuit to be entered?"

GILES, for the plaintiff, contended, "that the purchase and shipment of the goods being in time of peace, it was a lawful trading. The signing of the bills of lading, and all that was necessary to be done upon the contract between the plaintiff and his correspondent abroad, was completed on the 4th or 5th of February, at which time hostilities had not been declared. For the order of council, on the 4th of February, was only in the nature of an embargo, and if at that time the ship had been burnt in the river, there could have been no question as to the plaintiff's right to recover; and the policy having then attached, no subsequent act of hostility could deprive the plaintiff of his right to have his contract performed, or to be indemnified against the risks of it. Even the declaration of hostilities, which did not happen till the 12th of February, would only go to suspend the right of action on a contract in which an alien enemy was a party. The underwriter was at that time. apon the goods, and the plaintiff could only look to him for indemnity, because, having delivered the goods to the captain under the bill of lading, he could not get them out of his possession again, and unless he is indemnified by the underwriter, he is left without remedy, upon a loss incurred by a legal shipment of goods in time of peace. If the bill of lading did transfer the property in the goods to the consignees, in transitu, still the plain

1803.

BRANDON

versus

CURLING.

1803.

BRANDON

versus

CURLING.

tiff may recover now in time of peace, though for a lo for which during the war he could not.

The very for

He contend

of the plea of alien enemy proves this."
also, "that the cases upon the subject did not establi
more than that contracts entered into with an enen
were illegal, but that in this case the contract was wi
an alien ami, which ought to be performed."

R. CARR, contrà. "The material fact in this case i
that the ship sailed after the declaration of war. Th
alone made the transaction illegal. It is unnecessary 1
examine into any other date than that of the declaratio
of war, which, being compared with the time of th
ship's departure, is sufficient to establish this to be an ac
of trading with an enemy, which is illegal. Whateve
difficulties, therefore, might have occurred in the case
had hostilities not broken out till the voyage had com
menced, they are out of this case. The cases of Potts v
Bell, and Bristow v. Towers,+ are decisive of this case
When hostilities broke out the plaintiff might have ap
plied for a licence from the crown to have enabled hir
to have withdrawn the goods from the possession of the
captain, and for this he had a sufficient opportunity in
the interval between the 11th and 14th of February,
during which time the ship was at Gravesend. This is a
part of the port of London, and until the ships actually
receive their papers there, the clearance is not complete,
nor is the voyage commenced." He cited the case of
the Hoop, and other cases,§ in Robinson's Admiralty
Reports, to shew, that where the shipment was legal,
yet the exportation of the goods and sailing on the
voyage was illegal; and on the policy of permitting in-
surances to be made on the property of an enemy,
cited a remarkable passage from Valin|| on insurance,
who says, observing on the practice of our nation during

he