Gray v. Sims

WASHINGTON, Circuit Justice. This case presents a question somewhat novel, from the particular circumstances of it; although it is fully within certain well-established principles of law, by which it may, without much difficulty, be decided. The question is, whether the policy was void, upon the ground, that the trade in which this vessel, during the voyage insured, was .to be employed, was, or might be forbidden by law. Before arriving at the immediate decision of this question, we lay down the following positions, which,if not admitted, may easily be proved: 1. That if the commerce in which a vessel is to be engaged, during the voyage insured, be contrary to the laws of this country or to the law of nations, a policy upon the ship equally with that upon the cargo, the peculiar subject of interdiction, is void. It is true, that the insurance upon the ship, is strictly, an insurance upon the voyage, which, independent of the traffic in which she is engaged, may be perfectly lawful. But, L .xie traffic be forbidden by the laws of this country, the voyage, connected with such traffic, becomes on that account unlawful. The voyage is identified with the trade, for the sake of which it was undertaken; and the ship is the instrument with which the trade is carried on, and without which, the law could not be violated. The law, therefore, considers the ship, in pari de-licto, with the prohibited cargo; and a policy made upon her for the voyage, equally undeserving of its aid to enforce the performance of its stipulations. In the next place,, we take it for granted, that the object of this voyage, was the importation of goods from. Calcutta or Madras into the United States;, because it is inconceivable, that the owner of this ship would encounter the heavy expenses-of an East India voyage, -without a view to profit; which could only arise by bringing home, as he in fact did, a return cargo. There is on ground for presuming, that the intention of the owner was to trade between Calcutta and Madras, or any other ports; because the voyage insured, was from Philadelphia to-Calcutta and back, merely with liberty to touch and trade at Madras, on the outward and homeward voyages. Any other trading, therefore, would have deprived the insured of the protection of the policy. If the real intention of the voyage can be discovered, either by the nature of it, or by other evidence, and the object appears to be an illicit trading, the legal consequence will be the same, as if it had appeared on the face of the policy. If, then, this policy had been effected after the 2d of February, 1811, the case would have come precisely within the rule, which declares, that the law will not lend its aid to enforce the performance of k contract, made in contravention of its own regulations. This leads immediately to the material question in this cause; does the above rule apply to the policy under consideration, the same having been underwritten a few weeks prior to the 2d of February, 1811, and before the non-importation law came into operation against Great Britain? The difference between a policy made prior to the 2d of February, 1811, and one made subsequent to it, is, that in the latter case, the subject of the contract was immediately and absolutely illegal; whereas in the former, the illegality of it depends upon a contingency. But nevertheless, the underwriter promises to the in sured an indemnity against loss, upon a traffic which the laws of his country may forbid, and whether it should be forbidden or not. He engages to protect a trade, which is to be carried on in defiance of any law which may be passed to interdict it. And is this a contract which can show its face in a court of justice, whose duty it is to enforce the laws of the country? It was contended, with great ingenuity, by the plaintiff’s counsel, that at the time this policy was underwritten, the importation of goods from a British port into the United States, was lawful; and consequently, that the policy having once attached, the right of the insured to the premium became perfect, and could not be defeated by any thing ex post facto. Now, it may safely be admitted, that the importation was lawful at the time this insurance was effected; and yet it will not follow, that the policy attached; or if it did, that the right of the insurer to the premium, could, under any pos [1041] sible circumstance, be enforced. The importation was lawful at tbe time tbe insurance was made; and yet tbe contract was illegal, because it stipulated to protect a prohibited trade. It was impossible, that an importation of goods from Calcutta could be made into the United States, within the period of time which would elapse between the 17th of December, 1810, and the 2d of February, 1811; and consequently, it was to be made after the latter day; and if it should then be prohibited, still, the underwriter was bound to indemnify the insured against all risks to which he might be exposed, in making such illegal importation. The contract was illegal, because it looked to a period beyond that when the importation might be contrary to law, and engaged to protect it, although such should be the case. The policy, therefore, never did attach. Neither is it correct to lay it down as a general rule, without exception, that if the policy once attach, the right to the premium becomes indefeasible. It does so, we admit, notwithstanding any act of the insured, or of his agents. But if the contract be legal when it is made, and the performance of it is rendered illegal by a subsequent law, the parties are both of them discharged from its obligations. The insured loses his indemnity, and the insurer his premium. This is totally unlike the case of Odlin v. Pennsylvania Ins. Oo. [Case No. 10,433]; because, in that, the embargo law did not forbid, but only suspended, the performance of the contract. The voyage and trade were not condemned, but merely postponed. It was contended by the plaintiff’s counsel, that the contract should be construed to protect the importation, only in case it should be lawful; but not so, if it should be forbidden by the non-importation law coming into force. This would be to set up an implied warranty on the part of the insured, to destroy the protection which the policy promises him, and for which the premium was paid. A warranty which is totally inconsistent with the express stipulations of the policy, cannot, with any propriety, be implied. The insurer, in this ease, engaged to indemnify the insured against all losses which might happen to the ship on her voyage. The object, therefore, of the insured, was to be protected on that voyage at all events; and the protection was expressly and unconditionally promised by the underwriter. The supposed warranty, therefore, would be entirely contradictory to the obvious intention of both parties; and for that reason it cannot be implied. Upon the whole, we are of opinion, that the law is in favour of the defendants, and that judgment be rendered for them. Judgment for defendants.