Johnston v. Ludlow — 1 Cai. Cas. xxix

Majority

p. 1

CASE ARGUED AND DETERMINED IN THE Court for tbe Cria! of 3impeaci>metW AND CORRECTION OF ERRORS, IN THE STATE OF NEW-YORK •

p. xxix

James Johnston and Robert Weir, against Daniel Ludlow.

Headnote

The trade oí iie„; carried*" ™ the with the ene™es of,1IS mo~ thercountry, is protected “anty against" illicit trade, Jbreachof6 that warranty, mustlie’for an actual illicit, contraband ®ei" damnation, under pretext or such a trade is no timradebf

not in fact one or the other. A sentence in si foreign court of admiralty is not even primá facie evidence of any fact, if there appear in it enough to rebut such a presumption.

ERROR, from a judgment of the supreme court, in an ac•tion on a policy of insurance on goods, from New-York to La Vera Cruz. The instrument contained the following clause: “ That the property be warranted, by the assured, “ free from any charge, damage, or loss, which may arise in .. J r . ° ’ . ’ , , , , “ consequence oi a seizure or detention ot tne goods hereby "tl insured, for, or on account of'any illicit or prohibited trade, “ or any trade in articles contraband of war.” From the special verdict it appeared that the plaintiffs, who were the same in both courts, had shipped, besides the property insured, six blocks of tin and seventy-eight boxes of tin plates. That the latter were condemned as contraband, and the goods insured, as belonging to the same owners, British subjects, trading with an enemy to their mother country; but that the defendant knew, at the time of subscribing the policy, the plaintiffs were •subjects of the crown of Great-Britain, and that the tin was J 1 e on board. Judgment having been pronounced in favour of the defendant, the case was brought before this court, and

the following questions made: 1st, Was the trade, in relation to the characters of the plaintiffs, illicit ? 2d, Was the article of tin in blocks and plates contraband of war ? 3d, Did the warranty of the assured extend in judgment of law to a loss by seizure or detention, merely because illicit or prohibited trade, or trade in articles contraband of war, was alleged, when in fact the trade was not' such ?

On the first point the domicil of the plaintiffs being established here without any fraudulent motive, but for fair purposes of commerce, this court ought not to sanction the right of Great-Britian to seize, and confiscate their effects, as has been done.in this instance. The case cited from Bosanquet and Puller’s Reports, (page 430),^[1] which arose under the article in our late treaty with England, regulating our East-India trade, is not inapposite. In that case, the English court conceded to a native subject, domiciled in America, the right of an American citizen, in relation to commerce with the Indies. On the second point, that there may be circumstances and occasions, in which tin, in blocks and plates, may become contraband, is not to be controverted; but while Judge Kelsall professes to detail not only the causes for condemnation, but those on which he did not ground himself, he does not disclose a case which would warrant the conclusion, upon the article in question, of contraband of war. He rests himself upon the bare shipment of the article; this cannot be subscribed to, nor will the allowed effect of the admiralty sentence, as prima facie evidence, avail the defendant here, as the presumption of facts, to warrant a condemnation, is repelled, by a detail of the precise grounds on which the sentence was pronounced. On the last point raised by the underwriters, that the warranty protects him against any loss :by seizure or detention, for, or on account of any illicit trade or contraband of voar, nothing in this provision is relevant to the case before the court. The clause literally extends only to partial losses, occasioned by a seizure or temporary detention, unfollowed by a condemnation ; and if extended farther, it cannot have been the intention of the parties to the policy, to -throw upon the assured a loss where there could be no fault in him; when no illicit trade or contraband existed in fact, merely because a pretext of that kind is setup to cloak the condemnation. The expression, “for and on account off is not equi»

valent or convertible into the words under pretence of, but may well be understood to meaxifor the cause of; implying the actual existence of either illicit trade or contraband, as producing such loss or damage. No other construction ought to be admitted, unless the language of the contract is plain and unequivocal, necessarily inducing a contrary interpretation. The facts in the cause do not, as the law is now settled in Great-Britian, bear out the conclusion of the vice-admiralty court; nor can any thing in the warranty of the assured protect the underwriter. The judgment of the court below must be reversed.

Footnotes

* Maryat v. Wilson.