house established and doing business in a belligerent state will defeat an insurance effected in a neutral country "for whom it may concern." Also, that not disclosing that enemy property embarked in a neutral ship has been covered as the property of a neutral, is a material concealment (t). According to Arnould (u), if it be the established custom for vessels, in order to deceive the enemy's cruisers, to sail on certain voyages with false papers, it is unnecessary to specially communicate the fact to the underwriter when proposing insurances on such voyages. The decisions on which the learned author relies in support of this proposition, however (Planché v. Fletcher, 1 Doug. 251, An. 1779; Barnewell v. Church, 1 Caine, 217, An. 1803), seem to be at variance with the later judgments in Horneyer v. Lushington and Fomin v. Oswell, cited on p. 231, supra. In Bates v. Hewitt (x), The Georgia, a notorious Confederate cruiser, after being laid up for some time at Liverpool, was sold to the plaintiff at public auction, and converted by him into a merchant ship (y). The circumstances were well known at the time, but plaintiff, when effecting the insurance, did not call the underwriter's attention to them. It was admitted that the fact of the vessel having been in the Confederate military service, which rendered her liable to be seized by the United States Government, was a circumstance material to the risk. The vessel was, immediately on leaving Liverpool, seized by a Federal war-ship and condemned. It was found by the jury that the underwriter, when accepting the risk, was not aware that the vessel had the above antecedents, though he possessed abundant means of identifying her. The Court held that the plaintiff was not excused from communicating to the underwriter the above material fact, and that the insurance was consequently void. In Sawtell v. Loudon (z), it was decided that if a vessel be sailing without convoy, and be not within the exception of the convoy statutes, this is a material circumstance to be disclosed to (t) Vide cases cited, Arnould's Insce., 5th ed. 560. (u) Ibid. 567. (x) L. R. 2 Q. B. 595. (y) With reference to such a sale it may be remarked that on 8 Sept. 1864, a notification was issued that no ship of war belonging to either of the American combatants should be allowed to enter, remain, or be in any British port for the purpose of being dismantled or sold. 54 State Papers, 850. () 5 Taunt. 359. the underwriter. In this case the policy expressly gave leave to seek, join, and exchange convoy, and the underwriter, in granting it, remarked that a vessel of the same name was reported to be sailing without convoy. Subsequently the broker was informed by his principal that the report related in fact to the vessel insured, but he failed to acquaint the underwriter with this information, and it was held that the fact, being material, should have been so communicated. In Da Costa v. Scandret (a), where an owner insured his ship on hearing a report that a vessel resembling it had been captured, and did not communicate this report to his underwriter in Durrell v. Bederley (b), where the owner of a privateer, having heard it rumoured that some French frigates had made a capture which might well be his vessel, caused her to be insured without mentioning in his order for the insurance the rumour and relative facts; and in Beckthwaite v. Nalgrove (c), where the plaintiff concealed from his underwriter that he had received information that two or three French privateers were in the neighbourhood of the Cape of Good Hope, thus, apparently, constituting special danger to his vessel; the concealment was held to be fatal to the policy. In Campbell v. Innes (d), there being, as it would seem, a prospect of hostilities between this country and the United States, an insurance was effected on a ship from London to America "against all risks, American capture and seizure included." After the vessel had sailed, information was received that the American Government had declared war, and on the vessel arriving at her destination she was seized under a municipal act prohibiting the importation of British goods, the owner being, as it proved, an American subject. It was decided that this fact as to ownership, being material to the risk, should have been communicated to the underwriter, for whom judgment was given accordingly. With respect to the carriage of contraband of war, the fact that an insurance on neutral goods is intended to include (a) 2 Peere Wms. 170. Tide also Seaman v. Fournereau, 2 Stra. 1183. contraband articles being material to the risk, it must be communicated to the underwriter when the insurance is proposed to him. Or, failing such express communication, it must be shown that the underwriter might reasonably be presumed to know the nature of the trade engaged in (e). In Hobbs v. Henning (ƒ), a vessel, The Peterhoff, was bound from London to Matamoras, a neutral port on the borders of the Confederate territory. There was no warranty against contraband, and the goods were condemned in a Federal prize court as being contraband of war. The British court held that the goods were not by the law of nations contraband of war although unlawfully confiscated as such: that there was no concealment on the part of the assured, and that, the insurance being against capture (lawful or unlawful), the underwriters were liable. In the United States it was, at the close of last century, held that an insurance on "all kinds of lawful goods" covers contraband articles (g). But the Courts, in thus deciding, laid some stress on the circumstance that, if this were not so, some similar case would doubtless have been decided in the British Courts; and, since then, the latter Courts have decided, in effect, that this declaration of the law must be qualified as above explained. Similarly, if it be intended to attempt a breach of blockade, in order to render the insurance valid the underwriter must either be expressly informed of such intention, or else it must be shown that the fact was within his knowledge when he entered upon the insurance (h). If the imposition of a foreign embargo or municipal prohibition should affect the interest proposed for insurance, the underwriter must be acquainted accordingly (i). (e) Arnould's Insce., 5th ed. 699; Santissima Trinidad, 7 Wheat. 283; Er parte Chavasse, In re Grazebrook, 34 L. J. Bkcy. 17. Vide also p. 387, supra. (f) 17 C. B. 818; 34 L. J. C. P. 117; and p. 196, supra. (g) Vide Seton v. Low, and Juhel v. Rhinelander, p. 193, supra. (h) P. 123, supra. (i) Arnould's Insce., 5th ed. 682. XI. VOID INSURANCES. For the purposes subject may be "Where a voyage ALL insurances on voyages expressly prohibited by the common, statute, or maritime law, or which contravene the war policy, of the country of the insurer, are void ab initio. of this work, however, consideration of the confined to its relation to a condition of war. is illegal," said Tindal, C. J., in Redmond v. insurance upon it is invalid, for it would be singular if, the original contract being invalid and incapable to be enforced, a collateral contract founded upon it could be enforced." Smith (a), "an Trading with the enemy being illegal unless expressly licensed, insurances to protect such trade will consequently be also void. This has already been explained under the head "Prohibition of Trade with the Enemy" (b). If the trade be expressly licensed, the licence must be granted by the proper authority, and it must be strictly complied with, otherwise the voyage will be illegal, and any relative insurance void (c). Engaging in the enemy's privileged trade-that is, in any trade confined, in times of peace, to the subjects of the enemy country is unlawful unless permitted by proclamation, and, being unlawful, insurances to protect such traffic are void (d). Ransom from the enemy being prohibited, no insurance can be made on ransom-money (e), so long as the prohibition is maintained. (a) 7 M. & Gr. 457, 474. (b) P. 272, supra. (c) P. 289, supra. (d) P. 243, supra. If the exportation or importation of certain articles be declared prohibited, insurances on goods shipped contrary to the prohibition will necessarily be void (ƒ). Insurances against British capture or embargo, or on enemy property, being contrary to the national war policy, are illegal and void (g). Insurances are also void on trades or voyages prohibited by law or proclamation in this country. Thus, in Johnson v. Sutton (h), where an insurance had been effected on goods from London to New York, and it proved that one-half of the cargo, including the goods insured, was shipped without licence, all unlicensed trade with New York having been expressly prohibited, the voyage was held to be illegal, and the insurance consequently void. But if, as in the exceptional case of Atkinson v. Abbott (i), there be no intent to evade a prohibition, the voyage will not be held illegal, though involving the payment of a penalty. In this case, clearances to a Danish port having been prohibited, the vessel, with intent to supply the British fleet with provisions, had sailed under a false clearance to a neighbouring neutral port. If a voyage be one and entire, the whole is rendered illegal by an illegality at the commencement or in the course of the voyage. For illustrations in this connexion, reference may be made to Arnould's Insurance, 5th ed., pp. 676-679. In the same valuable treatise, pp. 673-680 and 1061-5, the question is discussed as to return of premium in respect of illegal insurances generally. (f) P. 308, supra. (g) Pp. 275, 308, supra. Consequently, such a clause as the following would invalidate any policy in which it was incorporated :— "Against all war risks whatsoever, including British as well as foreign capture, seizure, and detention, and the consequences of any attempt thereat, as well as by any vessels of war, letters of marque, privateers, or pirates.” Owen's Marine Insce. Notes, 2nd ed. p. 21. Vide also on p. 42, supra, note. (h) 1 Doug. 254. (i) 11 East, 135. |