was intended by the assured, the underwriters have a right to
say, they are not liable.
The hull of the ship in this case was
sufficient and sea-worthy: but it appears, that when she left
Jamaica, her sails were highly defective.
It is not enough

that a ship is supplied with such sails as are essential to her
safety from the perils of the sea, and which might enable her,
if not intercepted from, at some period or other, completing
her voyage. A person who underwrites a
who underwrites a policy upon her
has a right to expect that she will be so equipped with sails, that
she may be able to keep up with the convoy, and get to her
port of destination with reasonable expedition. She must be
rendered as secure as possible from capture by the enemy, as
well as from the danger of winds and waves. But here the
Minorca appears to have been deficient in sails, on which her
speed might materially depend: and if so, the risk being
thereby greatly increased, the policy never attached, and this
action cannot be supported. His Lordship also thought, that
upon the balance of evidence, the crew was insufficient. The
defendant obtained a verdict.

A

14th, tit.

Insurance, art. 12.

2 Val. 80.

In the ordinances of Lewis the Fourteenth it is declared, that Ord. of Lew. decay, waste, or loss, which happens from the internal defect of the thing insured, shall not fall upon the underwriter. commentator upon these ordinances has gone into the reason and principle of such a regulation, and has shewn the propriety of it. He sets out by observing, that this doctrine is of a date as ancient as the period when the French treatise called Le Guidon was published, which was about the year C. 5. art. 3. 1661, at which time, as appears by a reference to the book itself, it was considered as a settled principle, that losses, happening from causes of this nature, were not to be a charge upon the underwriter. The same author has also shewn, that such

140.

2 Val. 81.

a provision is adopted in favour of the insurers by the ordi- 2 Mag. 90. nances of Rotterdam and Amsterdam. After stating these circumstances he proceeds to say, that when a ship is deemed incapable of finishing her voyage, the question whether this event is a charge upon the underwriters or not, depends upon another; namely, whether it happened by the violence of the sea, or other fortuitous circumstance, or whether the disability proceeds from age and rottenness. This will be determined by the enquiry which was made before the de

parture

I Val. 654.

Pothier Tr. d'Assurance n. 66.

1 Emerigon, p. 580.

parture of the ship in order to judge, whether it was in a condition to perform the voyage or not: if the latter was the case, the insurers ought not to answer. In another part of this work, after laying down the same doctrine, he declares, that the indemnity will be void, even though the ship has been examined before her departure, and declared capable of performing the voyage; since the event has shewn clearly, that on account of latent defects it was no longer navigable; that is, if it were proved that parts of the ship were so rotten, weakened, and destroyed, that she was not in a proper state to resist the ordinary attacks of wind and sea, inevitable in every voyage, then the underwriters are discharged. The reason is, that the examination of the ship.before her departure extends only to the external parts, because she is not unripped; at least not so as to discover the interior and latent defects, for which the owner or master of the ship continues always responsible, and that with the greater justice, because they cannot be wholly ignorant of the bad state of the ship: but supposing them to be so, it is the same thing, being indispensably bound to provide a good ship, able to perform the voyage. (a)

The opinion of this learned foreigner is supported by two of his countrymen, Pothier and Emerigon.

Having thus shewn that the doctrine of sea-worthinesss, as established by the decisions of our courts of justice, is confirmed by the declarations of foreign laws, and by the opinions of foreign writers; it is sufficient now to say, that where the ship is not sea-worthy, the policy of insurance is void, as well where the insurance is upon the goods to be conveyed in the 2 Val. 164. ship, as when it is upon the ship itself. For whenever a cause arises with respect to damage done to goods through the insufficiency of the ship, the question, whether the master or owner is liable to make good the loss, depends upon ascertaining, whether the ship was in a condition to perform the voyage at the time of the commencement of the risk, or became defective from bad weather, and the perils of the wind and sea.

(a) Upon the doctrine of implied conditions, see Roccus, note 98.

CHAPTER XII.

Of Illegal Voyages.

WE proceed now to the consideration of another circum

stance by which the contract of insurance is vacated and annulled ab initio: and it is this; that whenever an insurance is made on a voyage expressly prohibited by the common, statute, or maritime law of the country, the policy is of no effect. The principle, upon which such a regulation is founded, is not peculiar to this kind of contract; for it is nothing more than that which destroys all contracts whatsoever: that men can never be presumed to make an agreement forbidden by the laws; and if they should attempt such a thing, it is invalid, and will not receive the assistance of a court of justice to carry it into execution.

The most material case upon this point is that of Johnson and Sutton, which came on to be argued in the year 1779, and received the solemn opinion of the Court of King's Bench.

It was an action on a policy of insurance on goods, on board the ship Venus, "lost or not lost, at and from London to New York, warranted to depart with convoy from the Channel for the voyage." The cause was tried before Lord Mansfield at Guildhall, and a verdict was found for the plaintiff. The defendant obtained a rule to shew cause why there should not be a new trial. The facts, upon His Lordship's report, appeared to be these:-The ship was cleared for Halifax and New York. She had provisions on board, which she had a licence to carry to New York, under a proviso in the prohibitory act of 16 G. 3. c. 5. But one half of the cargo, including the goods, which were the subject of this insurance, was not licensed, and was not calculated for the Halifax market, but for New York. There had been a proclamation by Sir William Howe to allow the entry of unlicensed goods at New York; and though there were bonds usually given at the Custom House here, by which the captain engaged to carry

the

Johnson v.
Sutton,

Dougl. 254.

the goods to Halifax, those bonds were afterwards cancelled, on producing a certificate from an officer appointed for that purpose at New York, declaring, that they were landed there. The commander-in-chief had no authority under the act of parliament to issue such proclamation, or to permit the exportation of unlicensed goods. The Venus was taken in her passage to 16 G.3.c. 5. New York by an American privateer. The first section of the statute prohibits all commerce with the province of New York, (amongst others,) and confiscates all ships and their cargoes, which shall be found trading, or going to, or coming from trading with them. In section the second, there is a proviso, excepting ships laden with provisions for the use of His Majesty's garrisons or fleets, or for the inhabitants of any town possessed by His Majesty's troops, provided the master shali produce a licence specifying the voyage, &c. and the quantity and species of provisions; but by the same proviso, it is declared, that goods not licensed, found on board such ship, shall be forfeited. After argument, upon the motion for a new trial,

See post. P. 365.

Camden v.
Anderson,

Lord Mansfield said "The whole of the plaintiff's case goes on an established practice, directly against an act of parliament. If the defendant did not know that the goods were unlicensed, the objection is fair as between the parties. If he did, he would not deserve to be favoured. But, however that may be, it was illegal to send the goods to New York, and, in pari delicto, potior est conditio defendentis. It is impossible to bring this within the cases cited (a), because here there was a direct contravention of the law of the land." The rule for a new trial was made absolute.

Upon this principle it was that in the cause of Camden and others v. Anderson, which was long contested in the Court of Rep. 723. King's Bench, and afterwards upon a writ of error in the Ex

6 Term

I Bos. &

Pull.

Rep. 173.

chequer-chamber, the underwriters were held not liable, the insurance in that case being made in direct contravention of the exclusive right of trading granted to the East-India Company by stat. 9 & 10 Wil. 3. c. 44. s. 81. and which exclusive right had never for one moment been suspended, nor bad that statute ever ceased to be an existing law. Indeed the

(a) These were cases of insurances on ships trading contrary to the re venue laws of foreign countries, of which more will be said hereafter.

principle

principle which destroys all insurances made on ships proceeding on illegal voyages, never was contested at the bar in the argument of the above cause; but only the application of it to the particular case, on account of various statutes which had been passed and repealed, and on account of a clause in 33 Geo. 3. a more modern statute, which it was supposed precluded the C. 52. S. 150. underwriters from setting up this defence. But no man at

tempted to argue that that which is unlawful, and a public wrong, could be the ground of an action.

Geo.

31. and Pull. 430.

I Bos. &

in which 3. books the

in the King's Bench and

chamber are

Soon after the above decision, a case arose, in which the Wilson v. Marryat, rights of the East-India Company, as far as they were affected 8TermRep. by the treaty between this country and America, came to be discussed in an action on a policy of insurance. By the 13th article of that treaty, which was confirmed by stat. 37 c. 97. s. 22. the United States of America are permitted to judgments trade to and from the British territories in India. But it was contended, notwithstanding the treaty and statute, that Exchequerthe insurance in question was upon an illegal voyage, being fully and "at and from Bourdeaux to Madeira and the East-Indies, and accurately given. "back to America," whereas the treaty meant to tolerate no other trading than a direct one between America and the EastIndies; and also it was insisted, that Butler and Collet, the persons for whose benefit this insurance was effected, were not entitled to the benefit of the treaty, they being naturalborn subjects of this country, but one of whom, after the ratification of American independence, had gone with his wife and family to reside in America, has ever since been domiciled there, and received as a citizen of the States of America; and the other of whom was resident and domiciled in America before the independence of that country, and has continued to be resident and domiciled there; and because their agent, the plaintiff, when he shipped the goods, and when he caused the policies to be effected, was resident in, and a subject of Great Britain, and knew that the ship was destined for the British territories in India. The special verdict in this case, was three times argued in the King's Bench, and once in the Exchequer-chamber; and the learned Judges, composing both those courts, were unanimously of opinion, that a natural-born subject of this country, though he cannot throw off his allegiance to the country, yet he may be a citizen of America for the purposes of commerce, and