Graces. A merchant there purchased her for a house at Amsterdam. Having been insured by a Dutch name, and warranted as in the policy, she went to sea, was captured by the French, and finally condemned by the parliament of Paris, under her English name, as lawful prize. The court were of opinion, that the sentence of the parliament of Paris was conclusive against the warranty. So where it appeared, that a ship, warranted American, had not on board a passport, which was required by the treaty between France and America; it was holden (y), that the assured could not recover, inasmuch as the warranty had not been complied with; for that required that the ship should be entitled to all the privileges of the American flag, and in order to be entitled to these privileges, she should have had a passport. But it is not necessary (z), in order to satisfy a warranty of neutrality, that the vessel should be navigated in conformity to an ex parte ordinance made by one of the belligerent states, and to which the neutral state is not a party. A neutral ship may carry enemy's property from its own to the enemy's country, without being guilty of a breach of neutrality (a); provided that neither the voyage nor commerce be of a hostile description, nor otherwise expressly or impliedly forbidden by the law of this country; although such ship, in consequence of carrying enemy's property, be liable to detention or to be carried into British ports for the purpose of search. The evidence usually adduced to falsify this warranty (b), or to prove a breach or forfeiture of neutrality, which amounts to a breach or forfeiture of the warranty, is the judgment or sentence of a court of admiralty, or other court having jurisdiction in questions of prize, by which the ship or goods insured, and warranted neutral property, have been condemned as prize. Since the judgment of the House of Lords in Lothian v. Henderson (c), it may be assumed as the settled doctrine of a court of English law, that all sentences of foreign courts of competent jurisdiction to decide questions of prize, are to be received here as conclusive evidence in actions upon policies of insurance, upon every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially. Consequently, where such sentences are given in evidence, and it appears that they proceed on a ground which falsifies the warranty of neutrality, the assured will thereby be prevented from recovering. In one case (d), indeed, where a ship was condemned as lawful prize in a foreign court of admiralty, and it was not stated in the sentence upon what ground the condemnation proceeded; it (y) Rich v. Parker, 7 T. R. 705. See further on this subject, Baring v. Christie, 5 East, 398. (z) Mayne v. Walter, Park, 531; S. C. 3 Doug. 79; Pollard v. Bell, 8 T. R. 434; Bird v. Appleton, 8 T. R. 562; Price v. Bell, 1 East, 663. (a) Barker v. Blakes, 9 East, 283. (b) Marsh. 288. (c) 3 Bos. & Pul. 499, per Ellenborough, C. J., delivering the opinion of the court in Bolton v. Gladstone, 5 East, 155, and per Sir J. Mansfield, C. J., in Siffken v. Lee, 2 N. R. 489. (d) Saloucci v. Woodmass, Park, 362; 3 Doug. 345, S. C. was holden, that a sentence of condemnation, as lawful prize, afforded a presumption that the goods were enemy's property, unless the contrary appeared on the sentence. In Baring v. Clagett, 3 Bos. & Pul. 201, the court being of opinion that the sentence of condemnation proceeded either on the ground of the ship not being neutral property, or on the ground that she was not properly documented, so as to entitle herself to the privileges of a neutral, adjudged the sentence to be conclusive evidence against a warranty of neutrality. Whether the foreign sentence profess distinctly and directly to condemn the ship, on the ground of its being enemies' property, or whether it can be collected only from other parts of the proceedings, that such was the ground of decision (e), our courts are equally bound by the sentence; and this rule holds, although it appears on the face of the sentence, that the prize court arrived at the conclusion through the medium of rules of evidence, and rules of presumption, established only by the particular ordinances of their own country, and not admissible on general principles (ƒ). In short, wherever the foreign courts adjudge the vessel to be good prize, upon a ground within their jurisdiction, and such ground falsifies the warranty, our courts will, by the comity of nations, which has always prevailed among civilized states, give credit to and consider themselves bound by their adjudication, without examining the reasons by which the foreign courts have arrived at their conclusion (46). Hence, as foreign courts of admiralty may decide on the construction of treaties (g), if they expressly adjudge a ship to be lawful prize for a breach of treaty, such sentence is conclusive in our courts against a warranty of neutrality, although, in this sentence, the foreign court may have referred to ex parte ordinances, and drawn inferences from such ordinances, in order to show an infraction of treaty. The sentence is equally to be regarded, as evidence of the facts inducing the condemnation, and upon which the condemnation proceeds, as of the judicial act of condemnation. In the case of an insurance upon ship, goods, and freight, all belonging to nearly the same American proprietors, which, as it appeared by the sentence, had been condemned on (e) Bolton v. Gladstone, 5 East, 155. (f) Bolton v. Gladstone, 2 Taunt. 85. (g) Baring v. Royal Exchange Assurance Company, 5 East, 99. (46) "A warranty of neutrality must, I conceive, now be understood, as containing in itself (among other things) a stipulation that the contract of assurance shall be void, if the subject-matter warranted neutral be condemned as enemies' property; and, if a warranty of neutrality contains this stipulation, the sentence of a court of competent jurisdiction, condemning a ship on account of its want of neutrality, is the proper evidence, according to every principle and rule of our law, to determine that fact." Per Lawrence, J., in Lothian v. Henderson, 3 Bos. & Pul. 524. account of the common default of all the proprietors, in their joint character of ship-owners, in not having a regular passport on board, as required by the treaty of their own state with France: it was holden (h), that the assured could not claim from the underwriter an indemnity for a loss thus occasioned by themselves, although the ship was not warranted or represented to be an American; for the ship owner is bound to have such documents as are required by treaties with particular nations on board, to evince his neutrality in respect to such nations. By the sentence of a French court of admiralty, it appeared that the ship insured, "warranted American," had been condemned as enemy's property, for want of having on board a role d'equipage, or list of the crew, such as was required by a marine ordinance of France, and adjudged by the court there to be requisite within the meaning of the treaty of commerce between France and America; it was holden (i) to be conclusive evidence against the warranty of neutrality, though, in fact, the ship was American. So where the sentence states, that the ship was condemned on the ground of having violated her neutrality (k), and acted contrary to the law of nations and the faith of treaties, such sentence is conclusive evidence against the warranty of neutrality. But where the grounds of confiscation are stated obscurely, and the court cannot collect what the precise ground was (1); or where the sentence adjudges the ship to be lawful prize, not because it is enemies' property, but for reasons which lead to a contrary conclusion (m); or if it appear that the condemnation proceeded solely on the ground of the ship having violated an ex parte ordinance, to which the neutral country had not assented (n); in such cases the sentence is not conclusive evidence against the warranty of neutrality. It is to be observed also, that the sentence of a foreign court, where it is conclusive, is conclusive only as to the grounds of the sentence, and not as to the premises which led to the conclusion (o). The preceding remarks, as to foreign sentences of condemnation, being conclusive evidence against the warranty of neutrality, must be confined to legal sentences, that is, sentences of a prize-court, acting and exercising functions either in the belligerent country, or in the country of a co-belligerent or ally in the war (p); for sentences of condemnation, pronounced by the authority of the capturing power, within the dominions of a neutral country, to which the prize may have been taken, are illegal (q), and consequently (h) Bell v. Carstairs, 14 East, 374. (i) Geyer v. Aguilar, 7 T. R. 681. (k) Garrels v. Kensington, 8 T. R. 230. Bernardi v. Motteux, Doug. 575; Fisher v. Ogle, 1 Campb. 418. (m) Calvert v. Bovill, 7 T. R. 523, recognized by Tindal, C. J., delivering judgVOL. II. ment, Dalgleish v. Hodgson, 7 Bingh. 504. Y inadmissible. And that is to be considered as a neutral country for this purpose (r), in which the forms of an independent neutral government are preserved, although a belligerent may have such a body of troops stationed there as in reality to possess the sovereign authority. Free of Capture in Port.-If a vessel is taken at her moorings, being neither within the caput portus, nor within that part of a haven where ships unload, the underwriter is not discharged by a warranty against "capture in the ship's port of destination" (s). Whether a vessel warranted free of capture in port, be in a port or not at the time of her capture (t), is purely a question of fact for the jury. See further Oom v. Taylor, 3 Campb. 204, and Maydhew v. Scott, ib. 205. The assured upon a policy on ship, not having leave to carry simulated papers, cannot recover for a loss by capture; if it appear by the sentence of the foreign prize-court that one of the causes stated for the condemnation was the carrying of simulated papers (u). Implied Warranty.-1. Not to deviate.-Another condition implied in the contract of insurance is, that the ship shall not deviate. Hence arises another ground of defence, on which the underwriter may insist, viz. that there has been a deviation, by which term is to be understood a wilful and unnecessary departure from the due course of the voyage insured, either with or without the consent of the assured, for any, even the shortest space of time. The effect of a deviation is not to avoid the contract ab initio, but only to determine it from the time of the deviation, and to discharge the insurer from all subsequent responsibility. Hence, damage sustained before the actual deviation must be made good by the underwriters (x). From the moment of deviation, however, the contract is at an end, and it is immaterial from what cause the subsequent loss arises. If two ports of discharge are named in the policy, and the ship intends going to both, she must take them in the order named in the policy. Hence, where a ship insured for A. and B., meaning to go to both, went first to B. in her way to A.; it was holden to be a deviation from the voyage insured, not being in the order named in the policy (y). Upon a policy from London to Trinidad or the Spanish Main, with leave to call at all or any of the West India Islands or settlements, and with liberty to touch and stay at any ports or places whatsoever and wheresoever, the assured must take all the ports at which he touches, in the same succession in which they occur in the course of his voyage insured (z). A policy (r) Donaldson v. Thompson, 1 Campb. 429. (s) Keyser v. Scott, 4 Taunt. 660. (t) Reyner v. Pearson, 4 Taunt. 662. (u) Oswell v. Vigne, 15 East, 70. But secus, if leave be given to carry simulated papers. Bell v. Bromfield, 15 East, 364. (x) Green v. Young, 2 Raym. 840; Salk. 444. (y) Beatson v. Haworth, 6 T. R. 531. (z) Gairdner v. Senhouse, 3 Taunt. 16. at and from Martinique and all and every West India Islands, warrants a course from Martinique to islands not in the homeward voyage (a). A ship having liberty to put into one port, put into another equally in her way; this was holden (b) to be a deviation, and to avoid the contract, though neither the risk nor the premium would have been greater, if the putting into such other port had been allowed by the policy. A ship was insured from Lisbon to England, with liberty to call at any one port in Portugal; it was holden (c), that under such a policy the party had only a liberty to call at some port in Portugal, in the course of the voyage to England. Where a ship insured to Martinique and all or any of the Windward and Leeward Islands, landed the greatest part of her cargo at Martinique, and sailed with the residue to Antigua, where she was wrecked while stopping partly to dispose of the residue of the outward cargo, and partly to obtain a homeward cargo; it was holden (d), that the underwriters were not liable; for, per Lord Ellenborough, C. J., when the disposal of the outward cargo ceased to be the sole reason for the stay at Antigua, the underwriters were discharged. A policy of insurance on goods at and from London to the ship's discharging port or ports in the Baltic (e), with liberty to touch at any port or ports for orders, or any other purpose, does not warrant the assured, after having touched at C. for orders, and gone on to S., a more distant port, in retouching at C. for orders: but if the policy be to any and all ports and places in the Baltic, forwards and backwards, and backwards and forwards, it is otherwise. Under a liberty to touch and stay at all ports for all purposes whatsoever, the stay must be for some purpose connected with the furtherance of the adventure (ƒ). Whether the purpose is within the scope of the policy, is a question for the court solely, and not for the jury (g). If the policy does not limit the time of stay, whether a ship has stayed an unreasonable time, is purely a question for the jury (h). A policy of insurance "at and from London to Berbice," was effected upon the receipt of a letter from the captain, (which was shown to the underwriter,) stating that he had passed Barbadoes, and the words "at sea" were inserted in the policy after the printed clause describing the beginning of the adventure on the goods. It was holden (i), notwithstanding, that the policy was vacated by a deviation at Madeira, in a former part of the voyage. A ship was insured from London to the southern whale fishery and back again (k), "with leave (a) Bragg v. Anderson, 4 Taunt. 229. (b) Elliot v. Wilson, 7 Bro. P. C. 459; 4 Bro. P. C. 470, Tomlins' ed. (c) Hogg v. Horner, Marsh. 197. But see Leathly v. Hunter, 7 Bingh. 528. (d) Inglis v. Vaux, 3 Campb. 437; Ld. Ellenborough, C. J., Moore v. Taylor, 1 Ad. & Ell. 25; 3 Nev. & M. 406, S. P. (e) Mellish v. Andrews, 16 East, 312. (i) Redman v. London, 3 Campb. 503, C. B., per Sir J. Mansfield, and afterwards confirmed by the court. (k) Jarratt v. Ward, 1 Campb. 263. |