Majority
p. 73E. and C. Goold against The United Insurance Company.
Headnote
An assignment of part of the subject insured to a belligerant, though after capture, is a breach of a warranty of neutral property.This was an action on a policy of insurance, on account of Patrick Ferrall, a Danish subj ect, at and from the Ha-vanna to Kingston, in Jamaica, upon twenty bags, containing 20,000 Spanish milled dollars, warranted to be Danish property. The money was part of the returned proceeds of a cargo of negroes brought from St. Thomas, in the Danish schooner John, and now shipped in *her on the voyage insured. For this sum two bills of lading were, on the 10th of January, 1798,'signed, one by Thomas Taggart, the other by William Bayley, but both of the same tenor and date, purporting to be for 20,000 dollars, shipped by Henry Amoresta on board the schooner John, William Bayley master, bound for St. Thomas, on account and risk of Patrick Ferrall, a burger and inhabitant of St. Croix, he paying freight, nothing, being owner’s goods. On the 12th of the same month, the John sailed on the voyage insured, with a Danish register, and other documents on board, showing her Danish property. On the 20th she was captured and carried into St. Jago de Cuba, where she .was libelled in an admiralty court established there. In the proceedings it appeared that the John had-not any custom-house papers on board, showing her destination to be for St. Thomas, nor any thing from which it could be gathered, except the bills of lading before mentioned, both of which-were at the time of capture delivered up; that the captain, in answer to an interrogatory put to him, said, the vessel was in the service of the Spanish government, under an agreement to furnish them with ne-groes, and of course entitled to enter and depart without pacers; that by a letter on board from Amoresta to Ferrall,
p. 74
it was mentioned that the captain bad consigned himself to Amoresta, who by the John, had then forwarded the 20,000 dollars, as a part of the sales of his negroes; that two of the seamen swore, at the time of the capture Thoms Taggart commanded the vessel, and then passed for Bayley, directing the crew so to call him; that this was contradicted by a positive affidavit made by Bayley, setting forth that Taggart was to have gone as captain, but that after-wards he the deponent was appointed, and that the sailors had been suborned and corrupted to swear as they did. These proceedings being to be forwarded to the tribunal of captures at Cape Francois, Bayley, on the 6th of February, in order to interpose his claim for vessel and cargo embarked for that place on board the privateer, but was captured and carried into Kingston, in Jamaica. On the 12th' of the same month, in consequence of previous instructions regularly given, the defendants underwrote the ^policy in question, at 15 per cent, on the following communication: “ Edward Groold & Son want insurance on specie in the schooner John, Captain Balie from Havanna to Kingston, Jamaica. This vessel goes up as if bound to St. Thomas, for which island bills of lading for the money are signed, but when she gets to the east end of the island of Cuba, bears away for Kingston, Jamaica. The property Danish.” On the 20th, Ferrall, in order to secure Amoresta for the amount of advances made, transferred to him one half of the interest in the subject insured.[2] On the 6th of March, the tribunal of captures pronounced a decree condemning vestel and cargo, as lawful prize to the captors. The sentence refers to the 12th article of the decree of the 21st October, 1744, and the 9th article of the decree of the 26th of July, 1778, confirmed by the article of the executive directory of the 12th ventóse, which ordain, “That all foreign vessels, on board of which is found a merchant’s
p. 75
supercargo, clerk, or major officer of an enemy’s country or of which the equipage consists of more than one third of the sailors of subjects from enemy’s countries, or. those that are not provided wit h a role d'equipage, attested by the public officers of the neutral countries where the ves seis sail from, are considered as lawful prizes.” It then goes on to state as reasons for confiscating, the want of a role d'equipage, of bills of lading, and invoices of the cargo from St. Thomas; the having given an invoice to the supercargo ; his refusal to be examined; the.having no clearance or papers on board to show the destination; the master’s passing as another person; the omission in case there had been a change of commander of having that circumstance authenticated by a document from some public officer at the port of his departure, and the answers of the captain when on interrogatories.
A day or two after the promulgation of this decree, Bayley arrived at the Cape, where, on the 9th of March, he presented to the tribunal of captures a memorial requesting a rehearing. In this he, after pledging himself to disprove the principal facts, accounts for the want of a role dequipage of his crew on the former voyage, by saying, that his cargo from St. Thomas consisted of negroes who worked the vessel, and that, on the voyage in which he was captured, *he had one; but it had been taken from him by the English, when they made prize of the privateer which he was on board of.
On this memorial a rehearing was had, in which the former sentence was confirmed, acHing, as a further reason, (but without noticing the want of a clearance,) that the imposition in passing for Baylev, was evident from the signature to the two petitions being signed “ Balay,” and the signature of the bill of lading “ Bayley.” That also in his petition to committee, he began to sign “Bal” instead of “ Bay.”
After this affirmation of the judgment in the inferior court, Amoresta put in a claim for the property as his own,
p. 76
which was, on tbe 26th June, 1798, dismissed with costs and damages. Interest, loss, and Abandonment, were admitted.
Upon these facts a verdict was taken for the plaintiff, subject to the opinion of the court, upon the whole matter, whether it should stand, or judgment of nonsuit be entered. But as the decision turned only on the effect of the transfer on the warranty, it is needless to detail the arguments on any other point.
Hoffman, for the plaintiffs.
The warranty is not affected by the transfer to Amoresta; it being subsequent to both the underwriting the policy and capture of the vessel. It is sufficient if the warranty was complied with at the time of sailing, and is not altered by any act of the assured during the continuance of the voyage. Eden v. Parkinson, Doug. 732.[2] Saloucd v. Johnson, Park, 364, and admitted in Tyson v. Gurney, 3 D. & E. 477. The transfer was after the voyage had been defeated, and a technical loss induced by the capture. This, too, for the sake of recovering the property.
Hanson and Troup, contra.
The property warranted neutral, must be so not only at the inception, but continue so during the prosecution of the voyage, and even after capture ;[3] for otherwise it may take away the right of the insurer after the abandonment to recover. After an original compliance with the warranty of neutral property, a transfer by the assured to a belligerant operates as a condition subsequent, and defeats the contract from that time. This distinguishes it from a want of neutrality at the commencement. In that case, as the policy never attached,
p. 77
the premium, *if there has been no fraud, may be demanded, but in this it cannot. The effect of such a transaction may be very prejudicial. Suppose there had been a restoration, and the vessel in proceeding on her voyage had been taken by an English cruiser, a condemnation must have ensued. The transfer, too, could not have been of a part of the insurance; it must have been for the whole of the property, as a claim was put in for the whole, which could not have been at all supported, without a proof of actual assignment.
Hamilton, in reply.
The quo animo must decide the transfer. If to merely secure for advances, and the claim interposed to rescue the property from the fangs of the captors in aid of the insurer, it ought never to prejudice the insured.
delivered the opinion of the court. The plaintiffs’ counsel have attempted to show that the transfer to Amoresta was only an assignment of the insurance, and not of ihe vessel or money; this is a refinement not warranted by the fact: and though it be true that upon a warranty of neutrality the happening of an event -which changes the neutral character, without any act of the party, will not be considered a breach of the warranty ; yet it is equally true that the party who so engages for the neutrality of the subject insured, cannot himself change the neutral character of the subject without the forfeiture of his right on the policy.[1] Here Ferrall, after capture, but before condemnation, assigned one half of the subject insured to one of the belligerants, and thereby infringed his warranty. It is not any answer to the objection to say that the condemnation was not on this ground ; or that this was after capture; the loss was not consummated until condemnation. The warranty has not been complied with, and the transfer might have increased the risk. On this ground, the court is of opinion that by the transfer to Amoresta, the insurers are discharged, and that, therefore, judgment of nonsuit be entered.
Judgment of nonsuit.
(a) (a) Doug. Í05. The parties themselves cannot change the nature of the policy.