Archibald v. Mercantile Insurance

Parker C. J. delivered the opinion of the Court. The plaintiff claims indemnity of the defendants, on the ground that this is a loas covered by the general terms of the policy, or at least that it is within the meaning of the memorandum at the foot of the policy. The general question is, whether by the terms of the contract, as expressed in the body of the policy, the defendants took the risk of an illicit voyage to St. John’s; for between these parties the importation into St. John’s must be deemed to be illicit, it having been so determined by a court of competent jurisdiction and there being no ambiguity in the sentence as to the cause of condemnation. Nor is there any reason to [73] doubt that the Admiralty Court decided right upon the subject, according to the laws by which it was bound to govern itself. The law is clearly settled, that an insurance does not cover an illegal voyage, unless by the terms of the contract the intention to do so is expressed, or unless the voyage insured is known to the assurer to be illegal, at the time when he makes the contract; in which latter case the intention is implied. See 6 Mass. R. 102 and 234, 13 Mass. R. 173, before cited, and numerous other cases cited by Mr. Justice Story in Andrews v. Essex F. & M. Ins. Co.1 There is no such intention expressed in this policy ; it is in the common form of such contracts where the ordinary perils are intended to be taken. But it is argued, that this intention is to be inferred from the fact, that the property was insured on a voyage to St. Pierre’s, with liberty to go to St. John’s. If the defendants had known and must be supposed to have consented that the vessel should go to St. Pierre’s and there sell part of her cargo, and from thence to St. John’s to finish her outward voyage, there might be some reason to charge them with the knowledge which would make them liable. By the policy the plaintiff was allowed to take his property to St. John’s. The true effect and meaning of this was, to go there in a lawful way. If on touching at St. Pierre’s it was found that the cargo could not be disposed of there, she might proceed to St. John’s, but it cannot be inferred that it was the intention to allow a sale of part of the cargo at St. Pierre’s and the rest at St. John’s. Or if this was contemplated, it was because both parties were ignorant that this would be deemed illicit; and this ignorance would repel any implication that an illicit voyage was intended to be insured. Neither of the parties contemplated a violation of the revenue laws of any country ; but such violation has occurred. The consequences rest altogether upon the assured, because he is secured against nothing but what was within the express terms or the fair implication of the contract. It is a misfortune against which he has not protected himself. We do not think the case is made any stronger for the plaintiff by the memorandum. In case of capture or detention no abandonment was to be made until proof should be exhibited of a condemnation, &c. This is only a qualification or restriction of the rights of the assured in case of loss under the policy. Capture, detention, &c., must mean illegal arrest, seizure, &c. such as by the general terms of the policy the underwriters are answerable for ; but cannot be extended to enlarge the risk of the underwriters to cases not reached by the words in the body of the policy.1 The testimony which was admitted to show the purpose for ■ which this memorandum was at first introduced, was therefore wholly immaterial, and whether it was rightly admitted or no cannot affect the question before us. The verdict must be set aside and a general verdict entereu for the defendants. Footnotes [1] 3 Mason’s R. 6, 18, 20; Planché v. Fletcher, 1 Doug. 251; Roccus De Ass note 21; Gardiner v. Smith, 1 Johns. Cas. 141; 2 Phillips on Ins. 193, c. 13, §10; Maryland and Phœnix Ins. Co. v. Bathurst, 5 Gill & Johns. 159; Cook v. Essex Marine Ins. Co., 6 Mass. R. 122; Wheatland v. Gray, 6 Mass. R. 124; Breed v. Eaton, 10 Mass. R. 21; Hayward v. Blake, 12 Mass. R. 176; Russell v. Degrand, 15 Mass. R. 35 ; Carrington v. Merchants' Ins. Co., 8 Peters, 495. [1] See Levy v. Merrill, 4 Greenl. 180; 2 Phillips on Ins. 191, 192, c. 13, § 9