Page images
PDF
EPUB
[blocks in formation]

IN WHAT MANNER AND BY WHOM THE CONTRACT OF INSURANCE

MAY BE MADE.

By the contract of Marine Insurance the insurer, for a consideration which is called a premium,' undertakes to indemnify the insured, against loss on property arising from perils, the property and the perils being both defined by the instrument of agreement, aided by the law. Insurers are under no obligation

1 See post, ch. 5.

2 See Le Guidon, chap. 1, art. 1; Emerigon, chap. 1, Meredith's ed., p. 2; Roccus, Ingersoll's Ed., 85.

to insure for all whoroler, and it has been held that an action will not lie against them for combining to refuse to insure for a certain person, however malicious their motive may be. But this question would depend somewhat, if the insurance was sought to be effected of an incorporated company, upon the nature of its charter, which, however, generally only gives the power, but does not compel the company to make insurance for all who offer.

A.:Of the Parlies to the Contract. It may be made, generally, by any parties competent to enter into any contract. The principal exception in practice is an alien enemys in whose favor no contract of insurance can usually be enforced in our courts. An insurance for his benefit, or to cover any property or interest belonging to him, is void.2 And

1 Hunt v. Simonds, 19 Mo. 583.

2 The doctrine at one time prevailed in England, supported by the great authority of Lord Mansfield, that it was lawful to insure an enemy's property. Planche v. Fletcher, 1 Doug. 251 ; Lavabre v. Wilson, id. 284; Thellusson v. Fergusson, id. 361; Eden v. Parkison, 2 id. 732; Bermon v. Woodbridge, id. 781 ; Tyson v. Gurney, 3 T. R. 477 ; Henkle v. Royal Exch. Ass. Co. i Ves. sen. 317; Gist v. Mason, 1 T. R. 84. It would seem, however, that the question of the legality of such insurances was never fairly met and decided by Lord Mansfield, as is shown by what fell from Buller, J., in Bell v. Gilson, 1 B. & P. 345, 354. “When,” says he, “the case of Gist v. Mason came on, I more than once conversed with Lord Mansfield on the subject, being desirous, to obtain his opinion on the legality of such insurances. On the legality, however, I never could get him to reason. He often said that in former times it was considered for the interest of the country to insure enemy's property, and on the persuasion of its being for the interest of the country, he always discountenanced any objection on that head. But he never went beyond the ground of expedience.” It was supposed that the country would gain more by the payment of premiums to the insurers, than it would lose by the payment of losses to the assured. Two temporary acts of parliament, applying only to existing wars, have made such insurances illegal. 21 Geo. 2, c. 4; 33 Geo. 3, c. 27, § 4. The courts of law, however, since the time of Lord Mansfield, have established by a long course of decisions the doctrine that all insurance of an enemy's property is illegal. The cases of Brandon v. Nesbitt, 6 T. R. 23, and Bris tow v. Towers, id. 35, decided that no action could be maintained on a policy of insurance, by or in favor of an alien enemy. The question of the legality of such insurances, though raised and ably argued by counsel, especially in the latter case, was not decided by the court. The precise question was raised in Furtado v. Rodgers, 3 B. & P. 191, and such insurance was held to be void because illegal. See also, Kellner v. Le Mesurier, 4 East, 396; Gamba v. Le Mesurier, 4 East, 407. The case of Brandon v. Curling, 4 East, 410, must be regarded as extending the doctrine still further. In this case insurance was effected on goods shipped on board a neutral ship, on account

it is the exclusive right of every government to determine who are its public enemies. And if a citizen's property, which is within the territories of a foreign nation when that nation becomes a public enemy, is brought from thence while the war continues, it is presumed to be a trading with the enemy, unless

and at the risk of Frenchmen before war was declared between Great Britain and France. The goods were exported during the war and were captured at sea by a cobelligerent, and Lord Ellenborough, C. J., laid down the rule, and the case was decided upon the ground, " that, where the insurance is upon goods generally, a proviso to this effect shall in all cases be considered as engrafted therein, namely, ‘ provided that this insurance shall not extend to cover any loss happening during the existence of hostilities between the respective countries of the assured and the assurer.'” It may be laid down that every insurance entered into in time of war of enemy's property is absolutely void, as illegal; and that the effect of a subscquent war is at least entirely to saspend the contract during the continuance of the war; and perhaps to completely avoid it. See Griswold v. Waddington, 15 Johns. 57, 16 Johns. 438; The Hoop, 1 Rob. Adm. 196, 201. See also, Le Guidon, chap. 2, art. 5; Emerigon, chap. 4, sec. 9, Meredith's ed., 103; 2 Valin, liv. 3, tit. 6, art. 3; Du Ponceau's Bynkershoek, chap. 21. Where the assured becomes an alien enemy after the happening of a loss, the remedy is merely suspended during the existence of the war, and his right may be enforced upon the return of peace. Flindt v. Waters, 15 East, 260. For exceptions to the rule that no contract with an alien enemy is valid, see, as to ransom bills, Ricord v. Bettenham, 3 Burr. 1734; Cornu v. Blackburne, 2 Doug. 641 ; Goodrich v. Gordon, 15 Johns. 6; Per Chancellor Kent, Griswold v. Waddington, 16 Johns. 438, 451; Per Sir William Scott, The Hoop, 1 Rob. Adm. 196,201 ; Per Washington, J., in Crawford v. The William Penn, 3 Wash. C. C. 484, 492; and as to bills drawn in an enemy's country and indorsed to an alien enemy by and for the subsistence of a prisoner of war, Antoine v. Morshead, 6 Taunt. 237. The remedy, however, upon such contracts would be suspended during the continuance of a war. The actions in Ricord v, Bettenham, and Cornu v. Blackburne, were brought in the names of the aliens. It is true that, in the former case, as is said by Lord Kenyon in Brandon v. Nesbitt, 6 T. R. 23, the action

v was not brought until peace was restored, and the objection of the plaintiff being an alien enemy was thus got rid of; but the latter case was brought during the continu ance of the war. There seems to be no reason why the general principle that trading with an enemy during the continuance of a war is illegal, should not apply to the contract of insurance. Speaking of this principle Mr. Justice Story said: “It has grown hoary under the reverent respect of centuries, and cannot now be shaken, without uprooting the very foundations of national law.” The Cargo of the Ship Emulous, 1 Gallis. 563, 571. See also, Potts v. Bell, 8 T. R. 548; Willison v. Patteson, 7 Taunt. 439.

1 The Hoop, 1 Rob. Adm. 196; The Elizabeth of Ostend, cited i Rob. Adm. 202'; The Jaffrow Louisa Margaretha, cited i Rob. Adm. 203, 8 T. R. 557, 1 B. & P. 349, Q.; The St. Phillip, cited 8 T. R. 556; The Brig Mary, 1 Gallis. 620; The Rapid, 1 Gallis. 295, 8 Cranch, 155; The Ship St. Lawrence, 1 Gallis. 467, 9 Cranch, 120; The Alexander, 8 Cranch, 169. See also, The Brig Joseph, 1 Gallis. 545. In regard to the right of a citizen in a foreign country to remove his goods immediately after war breaks out, see post, p. 15, n. 3. The case of The Madonna delle Gracie, 4 Rob. Adm. 195, has been supposed to countenance the doctrine that if a license might be obtained,

he has ordered the goods before the war and had no means of countermanding the order afterwards. But transactions with an enemy, which are not voluntary but the result of a strict necessity, are not illegal.? . A hull has the national character of her flag, but this does not determine the nationality of the cargo.

A trade or a transaction is sometimes made legal by a license given to a party who otherwise would have had no right to carry it on. This license may be “ to any person possessing it,” 5 - or

[ocr errors]

:

it would be the same as if it had been, and the cargo would be protected. This has arisen from the following expression : "The circumstances of this case may be taken as virtually amounting to a license; inasmuch, as if a license had been applied for, it must have been granted.” But this case was decided on its peculiar circumstances. The claimant was a British consul, who had not acted as a merchant, but had bought the cargo in question for the British government, to supply its fleets. It will be seen, therefore, that the case is not an authority to the point that a citizen may, after war has broken out, bring home his goods without a license.

1 The Juffrow Catharina, 5 Rob. Adm. 140. In the case of The Merrimack, 8 Cranch, 317, the goods were parchased by British merchants in England, in pursuance of orders from American citizens, before the war between the United States and Great Britain commenced. After it broke out they were shipped to the agent of the British merchants in this country, who was an American citizen, “on account and risk of an American citizen.” Held, that they were not liable to condenınation.

2 Jenks v. Hallet, 1 Caines, 60; Hallet v. Jenks, 3 Cranch, 210, i Caines Cas. 43. The action was upon a policy of insurance, on a vessel from Hispaniola to St. Thomas. The vessel, while on a voyage from Newport in Rhode Island to Havana, was compelled to put into Hispaniola, a country in the possession of France. The cargo was landed in order that the vessel might be repaired, and was prevented from being reloaded by the government. It was sold, and the cargo on board at the time of the seizure was bought with the proceeds. By an act of congress passed June 13, 1798, all commercial intercourse between the United States and France, and the dependencies thereof, was prohibited. The vessel was captured by a British frigate, and the assured claimed as for a total loss. Held, that under the circumstances the voyage was not illegal so as to avoid the insurance.

8 The Vrow Elizabeth, 5 Rob. Adm. 2; The Primus, Eng. Adm. 1854, 29 Eng. L. & Eq. 589; The Industrie, Eng. Adm. 1854, 33 Eng. L. & Eq. 572.

4 The Vreede Scholtys, 5 Rob. Adm. 5, note; The Primus, cited supra.

5 It has been much disputed in England whether the property of an alien enemy is protected by a license, in which the grantees are described in general terms. In The Hoffnung, 2 Rob. Adm. 162, Sir William Scott, after stating that the king might give an enemy liberty to inport, said : “But I apprehend, that unless there are very express words to this effect to be found in the license, I am to consider its meaning as not going to that extent, but as giving such a liberty only to subjects of this country; it is a license to British subjects' to import, &c., and as I understand it, they are to import on their own account, and if it appeared that the importation was on the account of other than British merchants, I should hold, that under the terms of this license, it *could not be considered a legal importation.” See also, The Beurse Van Koningsberg,

otherwise be made transferable; but if not so made it is personal only, and it will be fairly but yet accurately if not strictly construed as to all its indulgences. And it must be a license from our own government; for the mere sailing under an enemy's license constitutes an act of illegality. Nor will a pretended

2 Rob. Adm. 169. A license to P. B. & C. (who were in fact British merchants), on behalf of themselves and others, to export goods on a certain vessel bearing any flag except the French, was held by the King's Bench not to warrant an export of goods, which were at the time of shipment the property of an alien enemy. See also, to the same point, Flindt v. Scott, 15 East, 525. This case was reversed in the Exchequer Chamber, 5 Taunt. 674. And it may now be considered as settled, that the property of an enemy is protected by such a license. Robinson v. Touray, 1 M. & S. 217; Hullman v. Whitmore, 3 id. 337 ; Fayle v. Bourdillon, 3 Taunt. 546; Morgan v. Oswald, id. 555; Feise v. Bell, 4 Taunt. 4; Schnakoneg v. Andrews, 5 Taunt. 716; Usparicha v. Noble, 13 East, 332. See also, Hagedorn v. Bazett, 2 M. & S. 100; Warin v. Scott, 4 Taunt. 604; Feise v. Newnham, 16 East, 197.

1 Busk v. Bell, 16 East, 3 ; Barlow v. M’Intosh, 12 id. 311; Grigg v. Scott, 4 Camp. 339; Feize v. Thompson, 1 Taunt. 121.

. Sir William Scott, in the case of The Cosmopolite, 4 Rob. Adm.8, 11, said: “Licenscs being then high acts of sovereignty, they are necessarily stricti juris, and must not be carried further than the intention of the great authority which grants them, may be supposed to extend.” See also, The Juno, 2 Rob. Adm. 116; The Goede Hoop, Edw. Adm. 328. In this last case the old doctrine was very much modified. The following was laid down by Sir William Scott as the guide for the court in this and subsequent cases : “They are not mere matters of special and rare indulgence, but are granted with great liberality to all merchants of good character, and are expressed in very general terms; requiring, therefore, an enlarged and liberal interpretation. At the same time they are not free from control; restrictions dictated by prudent caution are annexed, and where they are so annexed, those restrictions must be supposed have an operative meaning. It is not, therefore, in the power of this court to apply such an interpretation to a license as would be in direct contradiction to its express terms, or to say that effect should be given to one part and not to another. If the permission is for a ship to go in ballast, it would be impossible for the court to say that it shall go with a cargo; for that would be not an interpretation, but a contravention of the license. But where it is evident that the parties have acted with perfect good faith, and with an anxious wish to conform to the terms of the license, I presume that I am only carrying into effect the intent of the grantor, when I have recourse to the atmost liberality of construction, which it is in the power of this court to apply. As a general rule, therefore, it is to be understood, that where no fraud has been committed, where no fraud has been meditated, as far as appears, and where the parties have been prevented from carrying the license into literal execution by a power which they could not control, they shall be entitled to the benefit of its protection, although the terms may not have been literally and strictly fulfilled.” See also, Flindt v. Scott, 5 Taunt. 674; Klingender v. Bond, 14 East, 484, and cases ante, p. 6, n. 3.

3 The Anna Catharina, 4 Rob. Adm. 107; The Julia, 8 Cranch, 181; The Aurora, id. 203; The Hiram, 1 Wheat. 440; The Ariadne, 2 Wheat. 143; Craig v. United States Ins. Co., Pet. C. C. 410. It has been held, in Connecticut, that if the insured obtain such a license through the minister of the neutral power, to a port of whose country the vessel is going, the voyage is not illegal. Bulkley v. Derby Fishing Co.,

« PreviousContinue »