Warren v. Manufacturers Insurance

Wilde. J. delivered the opinion of the Court. By the United States statute of 1790, c. 56, [29,] § 9, it is enacted that every ship or vessel, bound on a voyage across the Atlantic ocean, shall, at the time of leaving the last port from whence she sails, have on board, well secured under deck, at least sixty gallons of water &c. for every person on board such ship &c., and in like proportion for shorter or longer voyages ; and in case the crew of any ship or vessel, which shall not have been so provided, shall be put on short allowance in water &c., the master or owner of such ship or vessel shall pay to each of the crew one day’s wages beyond the wages agreed on, for every day they shall be so put to short allowance. The defendant’s counsel contend that the non-compliance with this requisition of the statute rendered the voyage illegal, and consequently that the policy is void. They rely on the general principle, that a contract founded on an illegal consideration, or which is made for the purpose of furthering any matter or thing prohibited by statute, or to aid or assist any party therein, is void as being against the policy of the law. This general principle is well established, but like all general rules, it is not without exceptions ; and the present case, we think, falls within one of the exceptions to the general rule. The rule applies to every contract which is founded on a transaction malum in se, or which is prohibited by statute on the ground of public policy ; but where a contract is founded on a transaction which is prohibited for the benefit of a particular individual or individuals, and has no [522] influence on the public welfare, such contract is not absolutely void, but only voidable by the oarty for whose benefit the prohibition is introduced. So where an act is enjoined under a penalty, and a contract is remotely and incidentally connected with the omission to do and perform the act enjoined, the contract is not necessarily void. Atkinson v. Abbott, 11 East, 135 ; Johnson v. Hudson, ibid. 180 ; Hughes, 273 ; Law v. Hollingsworth, 7 T. R. 160; Dawson v. Atty, 7 East, 367 ; Bell v. Carstairs, 14 East, 374 ; Carruthers v. Gray, 15 East, 35 ; Ward v. Wood,, 13 Mass. R. 539 ; Mitchell v. Smith, 4 Yeates, 86; Gremare v. Valon, 2 Campb. 144. The case of Atkinson v. Abbott, 11 East, 135, was a case on a policy of insurance, and it was contended for the defendant, that the policy was void because a false clearance had been taken out contrary to the 13 Car. 2, c. 11. But it was decided that this did not avoid the policy. Lord Ellenborough remarks, that “ there is nothing illegal, so as to avoid a policy, in the mere circumstance of a ship taking out a clearance for a place named in the policy, to which there is no intention of going. The statute of Car. 2, only gives a penalty of £ 100, for taking out a false clearance ; but there is nothing in that to make the voyage illegal. In Ward v. Wood, 13 Mass. R. 539, the insurance was upon an armed ship, with liberty to cruise and capture the vessels and goods of the enemy. One of the grounds of defence was, that the master,, in pursuance of instructions from the owners, had broken open vessels captured, and taken out part of their cargoes before condemnation ; but the Court held, that although such a practice was censurable, and against the directions of a statute of the United States, the policy was not thereby rendered void ; that the statute was merely directory, obedience to the law being enforced by bonds and penalties, and that disobedience did not make the voyage illegal. Upon the authority of those cases, and upon principle, we think it very clear, in the present case, that the voyage was not illegal by reason of the non-compliance with the statute, nor the vessel unseaworthy on this account. The [523] statute was made for the benefit of the crew ; and was after-wards extended to passengers by Stat. 1819, c. 170. Both statutes are merely directory, and amount to no more than this, that the master and owner shall be liable to a penalty, if the crew or passengers shall be put on short allowance, provided the vessel shall not have been supplied with water &c., in compliance with the directions of the statutes. The question, whether independently of the statutes the vessel was not, in point of fact, sufficiently equipped and provided with water for the voyage, has been decided by the jury on the evidence, and no objection is made to the correctness of their decision in this respect. Judgment according to the verdict.