Dunham v. American Insurance Co.

Headnote

Notwithstanding the clause in a policy of insurance, whereby the insurad warrant “ the property “free from any charge, damage or loss, which may arise In con- “ sequence of a seizure, or detention for, or on account of any illicit, or prohi- '• bited trade,” the underwriters are liable for the consequences of an illicit traffic, barratrously carried on by the master and crew, at a foreign port, without the knowledge or privity of the owners, whereby the property insured is seized, and becomes forfeited by the laws of the country.

This was an action upon three several policies of insurance, underwritten by the defendants, one upon the vessel, another upon the cargo, and the other upon the freight of the schooner Gertrude, to recover the amount of expenses incurred in consequence of the seizure and detention of the vessel and cargo, at Puerto Ca

bello, in the Republic of Colombia, through the barratry of the master and mariners. The defendants, by their policies, stipulate to take upon themselves, the perils of the seas, arrests and restraints, and detainments of all kings, princes or people, “ barra- “ in/ of the master and mariners” &c.; and the assured warrant t h e , , . ... . property free from any charge, damage or loss, which may arise in consequence of a seizure or detention for or on account of any illicit or prohibited trade, or any trade in articles contraband of war.

A verdict was taken by consent, for the sum of eighteen hundred and seventy three dollars and two cents, being the amount of the plaintiff’s demand, subject to the opinion of the court on the following case.

The plaintiffs were the owners of the vessel, and that part of the cargo insured; but had taken other goods on board, on freight: the whole cargo, however, consisting of lawful goods, admissible in the ports of Colombia, laden at New-York, and shipped for the purpose of being landed and sold at Puerto Cabello. The vessel sailed from New-York, bound to Puerto Cabello, with her cargo, on or about the ninth of August, 1827, and on the 28th day of the same month, arrived at Puerto Cabello, under the command of James Anthony, the master. Immediately on her arrival, the captain or collector of the port, and the custom house officers, came on board, and demanded of the master the manifest of the cargo, which was given; they then proceeded to search the forecastle of the vessel, where they found, secreted, two bags, containing 75 lbs. of tobacco, and one bag and one box containing 37 lbs. of cigars, which were not contained in the manifest, and had been clandestinely taken on board by the cook, one of the crew of the vessel, on his own account, without the knowledge or consent of the owners or supercargo, and secreted, with a view of being smuggled into Puerto Cabello. The collector and officers then proceeded to search the cabin, where they also found, secreted, four boxes of combs, not inserted in the manifest; and they then opened the captain’s chest, where they found five boxes and three bundles of Havannah cigars, three bundles of snuff', six boxes of mustard, twelve pair of pantaloons, one hat, eleven pounds of leaf tobacco,

thirty boxes of paste blacking, eighteen pairs of ear-rings, twelve' four boxes of raisins, twelve bottles of essences, and sundry other articles of merchandise, which belonged to the captain, and had been clandestinely taken on board by him, on his own account, without the knowledge or consent of the owners or supercargo, for the purpose of being smuggled into Puerto Cabello for sale. Of the aforesaid articles, the importation of tobacco' and cigars, was, at the time, absolutely prohibited, by the laws of Colombia; and the other articles were by the same laws, required to be entered on the manifest, and were subject to the payment of duties ; but none of them were so entered on the manifest. Upon making this discovery, the vessel and cargo were both seized by the public authorities of Puerto Cabello, as forfeited to the government of Colombia, for violating the laws, prohibiting, under the penalty of forfeiture and confiscation, the importation of tobacco and cigars; and also for the intended fraud on the revenue, by reason of the other articles not being included in the manifest, and an armed force was put on board the vessel, and the captain and cook were committed to prison. Proceedings against the vessel and cargo were instituted in the proper tribunals of Colombia, but, through the exertions of the consignee there, the vessel and cargo were finally given up at a heavy expense incurred.

It was admitted that, by the laws of Colombia, the importation of tobacco and cigars, into Colombia, at the time, was prohibited under the penalty of confiscation of the vessel and all the cargo on board, and the vessel and cargo were also liable to seizure and confiscation, for the omission to insert in the manifest, the other articles intended to be smuggled, by the master, into Puerto Cabello ; and the present action was brought to recover the amount of expenses paid by the plaintiffs in effecting the liberation of the vessel and cargo.

It was also admitted, that the conduct of the master and cook, was barratrous, and the point reserved was, whether the defendants were protected from liability by reason of the clause in their policies, exempting them from responsibility in cases of illicit and prohibited trade. If the court should be of opinion, in favor of the plaintiffs, the verdict was to stand, otherwise a nonsuit was to be

entered. Either party had liberty to turn the case into a bill of exceptions or special verdict.

The case was submitted to the court upon the following point made by the plaintiffs, viz ¡—that the underwriters are responsible for a loss by illicit trade, barratrodsly carried on by the master, and are not protected by the clause in the policy against illicit trade. [Suchley v. Delafield, 2 Caines’ R. 222.]