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which would be the means of assisting him in wai could only be suspended by the intervention of war; an
this contract to indemnify against the loss of a ship R. would likewise only be suspended in its performance, bu
would not be absolutely void. That the performance a
BRANDON versus CURLING.-Same day.
GOODS are shipped on board an American by a merchant in Lon-
THIS action was brought against the defendant as an Brandon
versus * 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
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 Gazelte, 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 majesty'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 further orders; and that a general embargo or stop be made of all freuch 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 damage or embezzlement whatsoever be sustained.” The policy was subscribed by the defendant on the 21st of January, 1793. On the uth 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 Blouse to enable her to sail froin London, with an intention of going to Bayonne. On the 13th of February, 1793, she arrived at Gravesend, and on the following day the captain received from the searcher's office there, according to the ordinary 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 Buyonne. 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 Traner, 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 bis voyage to Ba-' 1803. yonne, the cargo was seized by officers acting under the BRANDON authority of the king of Spain, and afterwards coademned 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 plaintif, 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 19th of February, would only go to suspend the right of action on a contract in which an alien eneiny was a party. The underwriter was at that time upon 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, be 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
tiff may recover now in time of peace, though for a lo7 for' which during the war he could not. The very for of the plea of alien enemy proves this.” He contende, also, “ that the cases upon the subject did not establit more than that contracts entered into with an enen were illegal, but that in this case the contract was wil 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 bin to have withdrawn the goods from the possession of the captain, and for this he had a sufficient opportunity in the interval between the lith 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 Adiniralty 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 insurances to be made on the property of an enemy, he cited a remarkable passage from Valin || on insurance, who says, observing on the practice of our nation during