One kind of illegality frequently occurs, and questions relating to it are often of much importance; that of a contraband trade, which is a trade with a belligerent, intended to provide him with military supplies, equipments, instruments, or arms.1 Goods are contraband, which are in fact munitions of war, or may certainly become so, or which are designed, or capable of being used for the support or assistance of an enemy in carrying on war, offensively or defensively. Thus, even provisions,

any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled." There seems to be no reason why an owner, though the transfer to him be not registered, should not be able to insure his interest, notwithstanding the provisions of the statute. Would it be argued that a purchaser of real estate could not insure his house because his deed had not been recorded? There seems to be no distinction between the two cases. Under the statute 3 and 4 Will. 4, c. 55, it has been held that a mortgage is good between the parties, though the particulars thereof are not indorsed on the certificate of registry. Lister v. Payn, 11 Sim. 348.

1 Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102, 114.

2 Grotius divided all articles of commerce into three classes. 1. Those used only in war, as arms, etc. 2. Those of no use in war, as articles of luxury. 3. Those which are of use both in war and peace, as money, provisions, ships, and naval stores. The first class he considered always contraband, the second never, and the third as depending on circumstances Grotius, de jure Belli ac Pacis, lib. iii. c. 1, § 5. But since the time of Grotius, marine ordinances, treaties, and adjudications, influenced by the changes in the means of carrying on war, have made some articles contraband, which were formerly not so. The following is the result of the adjudications. Ships of war, destined to an enemy's port, to be there sold, are considered contraband. The Richmond, 5 Rob. Adm. 331; The Brutus, 5 Rob. Adm. 331, n., and Appendix. So is sail-cloth, under all circumstances. The Neptunus, 3 Rob. Adm. 108. Rosin, if destined for a military port of the enemy. The Nostra Signora de Begona, 5 Rob. Adm. 97. Brimstone, under some circumstances, will be considered contraband. The Ship Carpenter, 2 Act. 11. Tallow, if destined to a port merely of naval equipment, will be deemed contraband, but not, if the port also possesses an extensive trade, and mercantile character. The Neptunus, 6 Rob. Adm. 403. Timber for ship-building, also masts, if going to an enemy's port of naval equipment, become contraband. The Staadt Embden, 1 Rob. Adm. 26; The Endraught, 1 Rob. Adm. 22, 25; The Twende Brodre, 4 Rob. Adm. 33. Pitch and tar, which are not the products of the country exporting, are contraband. The Twee Juffrowen, 4 Rob. Adm. 242; The Jonge Tobias, 1 Rob. Adm. 329; The Richmond, 5 Rob. Adm. 325. But it has been held that pitch and tar, being Swedish property, and conveyed in Swedish vessels, are not subject to confiscation, but simply to the rights of preoccupancy and preemption, "it being considered," in the words of Sir W. Scott," a harsh exercise of a belligerent right to prohibit the carriage of these articles, which constitute so considerable a part of the native produce and ordinary commerce of the country." The Maria, 1 Rob. Adm. 340, 373; The Christina Maria, 4 Rob. Adm. 166; The Sarah

if they are intended to be sent to a place which an enemy is attempting to reduce by starvation. And, in general, articles ordinarily used only for peaceful purposes, if capable of a military use, and sent to places where it is probable that such a use will be made of them, are contraband of war; and so is all property

Christina, 1 Rob. Adm. 237, 241. See also, The Charlotte, 1 Act. 201; The Neptunus, 6 Rob. Adm. 403. This is contrary to an early decision of the Lords of Appeal in the case of The Med Good's Hielp, cited 1 Rob. Adm. 29, 373. Hemp is generally contraband. The Ringende Jacob, 1 Rob. Adm. 89; but that which is not fit for naval purposes (The Gute Gesellschaft Michael, 4 Rob. Adm. 94), or which is the product of the exporting country, and embarked in its vessels (The Apollo, 4 Rob. Adm. 158), is not considered contraband, but the onus probandi lies npon the claimant. The Evert, 4 Rob. Adm. 354. Anchors are contraband. The Jonge Margaretha, 1 Rob. Adm. 189, 194. So is copper in sheets. The Charlotte, 5 Rob. Adm. 275. See also, generally, Azuni on Maritime Law, part 2, ch. 2, art. 5.

1 In the case of The Jonge Margaretha, 1 Rob. Adm. 189, the law on this subject is most ably set forth by Lord Stowell, as follows: "I take the modern established rule to be this, that generally they (provisions) are not contraband, but may become so under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. . . . . Among the circumstances which tend to preserve provisions from being liable to be treated as contraband, one is, that they are of the growth of the country which exports them. . . . . Another circumstance, to which some indulgence, by the practice of nations, is shown, is, when the articles are in their native and unmanufactured state. But the most important distinction is, whether the articles were intended for the ordinary use of life, or even for mercantile ship's use; or whether they were going with a highly probable destination to military use. Of the matter of fact, on which the distinction is to be applied, the nature and quality of the port to which the articles were going, is not an irrational test; if the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war, may be constructed in that port. Contra, if the great predominating character of a port be that of a port of naval military equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption. . . . . The presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if at the time the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful.” This was a case of a neutral carrying a cargo of provisions, cheese, not the product and manufacture of his own country, but of the enemy's ally in war, to the great port of naval equipment of the enemy, and the cargo was therefore condemned. See also, The Jonge Andreas, cited 1 Rob. Adm. 193; The Jonge Frederick, cited 1 Rob. Adm. 193; The Joannes, cited 1 Rob. Adm. 193; The Endraght, cited 1 Rob. Adm. 190; The Juffrow Magdalena, cited 1 Rob. Adm. 190; The Welvaart, cited 1 Rob. Adm. 195; The Haabet, 2 Rob. Adm. 174, 182; The Edward, 4 Rob. Adm. 68; The Frau Margaretha, 6 Rob. Adm. 92; The Zelden Rust, 6 Rob. Adm. 93; The Richmond, 5 Rob. Adm. 325, 327; The Ranger, 6 Rob. Adm. 125; The Commercen, 1 Wheat. 382, 2 Gallis. 261; Maisonnaire v. Keating, 2 Gallis. 325.

destined to a besieged or blockaded town or port.

A distinc

tion is also taken between articles in their native and unmanufactured state, and the same articles when made up into implements, or what may be used as such.2 Innocent neutral goods, that is, those not contraband, cannot by the law of nations be legally captured by a belligerent. And no contraband trade is illegal in the country of the neutral who carries it on.3

Whether the contraband character of the ship or goods continues to the end of the whole voyage, or terminates with the passage in which the contraband trade is intended or done, may not be certain, but we think the better opinion is in favor of the latter rule. Whether the rule which forfeits a whole cargo for the illegal character of a distinct part, is to be extended to the

1 See 1st vol.; also The Nayade, 1 Newb. Adm. 366; The Bark Coosa, 1 Newb. Adm. 393.

2 Thus Sir Wm. Scott, in the case of The Jonge Margaretha, 1 Rob. Adm. 189, 194, said: "Iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favorably considered than cordage; and wheat is not considered so noxious a commodity as any of the final preparations of it for human use."

3 Pond v. Smith, 4 Conn. 297; Seton v. Low, 1 Johns. Cas. 1; Skidmore v. Desdoity, 2 Johns. Cas. 77; Juhel v. Rhinelander, 2 Johns. Cas. 120, 487; De Peyster v. Gardner, 1 Caines, 492; Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102, 113; The Santissima Trinidad, 7 Wheat. 283, 340. See also, Howland v. Com. Ins. Co., Anthon, N. P. 26; Baltimore Ins. Co. v. Taylor, 3 Harris & J. 198.

* In Carrington v. Merchants' Ins. Co., 8 Pet. 495, 520, Story, J., said: “When the contraband goods have been deposited at the port of destination, and the subsequent voyage has thus been disconnected with the noxious articles, it has not been usual to apply the penalty to the ship or cargo upon the return voyage, although the latter may be the proceeds of the contraband. And the same rule would seem, by analogy, to apply to cases where the contraband articles have been deposited at an intermediate port on the outward voyage, and before it had terminated; although there is not any authority directly in point. But in the highest prize courts in England, while the distinction between the outward and homeward voyage is admitted to govern, yet it is established that it exists only in favor of neutrals who conduct themselves with fairness and good faith in the arrangements of the voyage. If, with a view to practise a fraud upon the belligerent, and to escape from his acknowledged right of capture and detention, the voyage is disguised, and the vessel sails under false papers and with a false destination, the mere deposit of the contraband in the course of the voyage, is not allowed to purge away the guilt of the fraudulent conduct of the neutral." The Rosalie & Betty, 2 Rob. Adm. 343; The Rosalia, 4 Rob. Adm. note to table of cases; Parkman v. Allen, 1 Stair's Decis. 529, 6 Rob. Adm. 382, note; The Baltic, 1 Act. 25; The Christiansberg, 6 Rob. Adm. 376, 381; The Nancy, 3 Rob. Adm. 122, 126; The Randers Bye, 6 Rob. Adm. 382, n.; The Margaret, 1 Act. 333; The Joseph, 1 Gallis. 545, 8 Cranch, 451. See 2 Wheaton on International Law, p. 219.

illegality of contraband, is not certain; it has been so extended in some English cases, but this may be regarded as extreme, if not excessive. The general rule as to the effect of contraband may, we think, be stated thus: If contraband goods are on board, all goods belonging to the owner of the contraband goods are forfeited. The lawful goods belonging to other shippers are not forfeited. The owner of the ship loses the freight and charges to which he is entitled on the goods thus forfeited; but he loses no more, unless he is also the owner of the contraband goods, or attempts to protect them by the cover of false papers or false destination, or some other fraud; and in either of these cases, the ship is liable to confiscation.1

SECTION IV.

OF PRIOR INSURANCE, DOUBLE INSURANCE, AND REINSURANCE.

The marine policies of this country, usually, contain a clause to the effect, that if there be any prior insurance, the insurers shall be liable only for so much as the prior insurance may fail to insure of the property. Of course, under such a provision, a second policy insures only the uninsured excess of interest remaining after the first; the third policy the same excess remaining after the second, and so on.2 And this clause relates

1 Carrington v. Merchants' Ins. Co., 8 Pet. 495, 520, per Story, J.; The Jonge Tobias, 1 Rob. Adm. 329; The Stadt Embden, id. 26; The Ringende Jacob, id. 89; The Mercurius, id. 288; The Franklin, 3 Rob. Adm. 217; The Edward, 4 Rob. Adm. 68; The Ranger, 6 Rob. Adm. 125. Nearly all of the questions respecting contraband trade have been affected by treaties.

2 The "American clause," as it is called, is not expressed in the same language in all our policies. A form in common use provides, "that if the assured shall have made any other assurance upon the subject insured prior in date to this policy, the assurers shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the subject insured, and shall return the premium upon so much of the sum by them assured as they shall be, by such prior insurance, exonerated from; and in case of any insurance upon the subject-matter, subsequent in date to this policy, the assurers shall, nevertheless, be answerable for the full extent of the sum by them subscribed, without right to claim contribution from such subsequent assurer, and shall accordingly be entitled to retain the premium by them received, in the same manner as if no such subsequent assurance had been made."

to a priority in effecting the insurance, and not to priority in the commencement of the risk; and the actual time of making the contract may, for this purpose, be proved to be different from its written date.1

If policies bear date on the same day, the court will inquire into fractions of a day, and determine the priority by ascertaining which was first made.2 In some policies the clause is to the effect, that an insured shall recover only that proportion of the loss which the amount insured in his policy bears to the whole amount insured on that property.3

If the prior policy is deducted, only that amount which the insurers are liable to pay under it beyond the amount of the premium is deducted.4 And if the value of the property is greater in a second policy, only the actual amount insured in the first is to be deducted, and not that amount increased in the same proportion as is the value in the second.5

If the whole property is covered by the first policy for a part of the time when the second should attach, so that there is nothing to which it can thus attach, it will be suspended, and will begin to attach when the first policy is exhausted.

It seems to have been decided, that if there be divers policies and property enough when all attach for all to take effect, and this property is afterwards diminished, the effect of the clause remains, so that the last policy is first discharged, and then the last but one, and so on, as the property lessens; but it has been strongly doubted, and for good reasons, whether the true rule be not, that in such a case, a diminution in the property after all had

See Peters v. Delaware Ins. Co., 5 S. & R. 473; American Ins. Co. v. Griswold, 14 Wend. 399. Under this clause, the usage in New York appears to be, that where there are two or more policies on the same cargo and risk, of different dates, and interest to supply them all, if a partial loss takes place while all the goods are on board, the several policies contribute in proportion to the sum insured by each policy. Am. Ins. Co. v. Griswold, 14 Wend. 399.

1 Lee v. Mass. Fire & Mar. Ins. Co., 6 Mass. 208.

2 Potter v. Marine Ins. Co., 2 Mason, 475; Brown v. Hartford Ins. Co., 3 Day, 58.

3 Lucas v. Jeff. Ins. Co., 6 Cowen, 635; Howard Ins. Co. of. N. Y. v. Scribner, 5

Hill, 298.

4 2 Phillips, Ins. 1257.

5 Murray v. Ins. Co. of Penn., 2 Wash. C. C. 186. Sce M'Kim v. Phoenix Ins. Co., id. 89.

Kent v. Manufacturers' Ins. Co., 18 Pick. 19.