negligence: for, in either case, the contract is founded in deception, and the policy is consequently void.—Fitzherbert v. Mather, 1 T. R. 12. A. abroad, having two warehouses, writes to this country to effect an insurance upon one of them only, without stating, as was the fact, that an adjoining house had been on fire that evening, and was in danger of breaking out again; and sent his letter after the regular post time. The fire broke out again the next day but one following, and consumed A.'s warehouse. It was holden, that, though the concealment might not be fraudulent, it was material.-Bufe v. Turner,

6 Taunt. 338.

Where the assured, knowing that his ship had sailed from the coast of Africa on a certain day, only states that she was on the coast on that day, this is a material concealment.-Ratcliffe v. Shoolbred, 1 Marshall, 466.

If the assured was supposed to be guilty of a fraud, the proof of it falls upon the underwriter; direct and positive proof is not necessary; but circumstantial evidence is all that can be expected, and, indeed, all that is necessary to substantiate such a charge.

It remains to be considered, how far the assurer may retain the premium, or is bound to return it, in cases where the policy is void, on account of the frauds which have been treated of in this division. This question was decided in the case of Chapman and others, assignees of Kennet v. Fraser, where it was expressly determined, that, in case of actual fraud on the part of the assured or his agent, the underwriter might retain the premium. Hence, too, it would seem that the underwriter is bound to return the premium, where fraud is rather by the construction of the law, than by the actual conduct of the assured.— Trinity Term, K. B. 33 Geo. III.

So, if an underwriter be guilty of concealment or fraud, he is liable to return the premium; as if he assure a ship on her voyage, which he privately knew to be arrived.-3 Burr. 1909.

11. SEA-WORTHINESS,

This

Every ship assured must, at the time of the assurance, be able to perform the voyage, unless some external accident should happen: and, if she have a latent defect, though wholly unknown to the parties, that will vacate the contract; and the assurers are discharged. doctrine is founded upon that general principle of assurance law, that the assurers shall not be responsible for any loss arising from the insufficient or defective quality or condition of the thing assured.

But, although the assured ought to know whether the ship was seaworthy or not at the time she set out upon her voyage, yet he may not be able to know the condition she may be in after she is out a twelvemonth; and, therefore, whenever it can be made appear, the decay, to which the loss is attributable, did not commence till a period subsequent to the assurance, as she was sea-worthy at the time, the underwriter would be liable. In a late case, Eden v. Parkinson, Doug. 708, the same principle was much relied upon. Lord Mansfield said, "By an implied warranty, every ship assured must be tight, staunch, and strong; but, it is sufficient if she be so at the time of her sailing. She may cease to be so in twenty-four hours after departure, and yet the underwriter will continue liable." But if a ship sail upon a voyage, and in a day or two become leaky, and founder; or be obliged to return to port, without any storm, or visible or adequate cause to produce such

an effect; the presumption is, that she was not sea-worthy when she sailed; and the jury, without any evidence on the part of the defendant, may draw such a conclusion.-Munro v. Vandam, Sittings before Lord Kenyon, Mich. 1794.-Every case of this kind must depend upon its own circumstances: but, when they are once ascertained, the rule of law is clear and decisive.

Sea-worthiness being an implied condition, in the contract of assurance, it is not necessary there should be any previous representation of the condition of the ship, unless particularly called for, because, unless it be fit for the performance of the voyage assured, there is no binding contract.-Shulbred v. Nutt, Sittings at Guildhall after Hilary, 1782.-Haywood and another v. Rodger, T. R. Hilary, 44 Geo. III.

If it be necessary that the ship itself should be sufficient for the voyage, it is also an implied condition, that she should be furnished with every thing necessary for the purpose of safe and careful navigation. Not only must the ship herself be sea-worthy, but she must have a sufficient crew, a captain of competent skill, and a pilot on board, wherever a pilot is customarily employed.—Law v. Hollingsworth, 7 T. R. 160.

A vessel defective in sails necessary to facilitate her escape from an enemy, and to enable her to proceed with expedition, has been held not to be sea-worthy.- Campb. 1.

12. ILLEGAL VOYAGES.

Whenever an assurance is made upon a voyage expressly prohibited by the common, statute, or maritime law of the country, the policy is of no effect, being void from the beginning.

Even if it be told to the underwriter, that the voyage is illicit, he shall not be bound, because the contract is null and void.-Bynk. Quæst. Jur. Pub. 1. i. c. 21.

If a ship, though neutral, be assured on a voyage prohibited by an embargo, laid on in time of war, by the prince of the country in whose ports the ship happens to be, such an assurance is also void.-1 Black. Com. 270.

It follows, of course, that any act done in contravention of a procla mation of this nature, is illegal and criminal; because it is equally binding as an act of parliament, and a contract founded on such illicit proceedings is consequently void.-Delamada v. Motteaux, Mich. 25, Geo. III.

Though an assurance upon a smuggling voyage, prohibited by the revenue laws of this country, would be void under the principle above stated; yet the rule has never been supposed to extend to those cases where the ships have traded or intended to trade, contrary to the revenue laws of foreign countries, because no country takes notice of the revenue laws of another; in such cases, therefore, the policy is good and valid; and, if a loss happens, the underwriter will be answerable. Planche v. Fletcher, Doug. 238.

The case of Camden and others v. Anderson, was that of an assurance made in direct contravention of the exclusive right of trading granted to the East India Company by various acts of parliament. The underwriters were deemed not to be liable.-6 T. R. 725.

Soon afterwards, a case occurred, in which the rights of the East India Company, as far as they were affected by the treaty between this

country and America, came to be discussed in an action on a policy of assurance. By the 13th article of that treaty, confirmed by 37 Geo. III. c. 97, § 22, the United States of America are permitted to trade to and from the British territories in India. This was an assurance, "at and from Bourdeaux to Madeira and the East Indies, and back to America."

It was contended, 1st, That the trade which the treaty meant to tolerate was a direct one between America and the East Indies; and 2dly, that the persons for whose benefit this assurance was effected were not entitled to the benefit of the treaty, they being natural-born subjects of Great Britain, but had been domiciliated in America, and received there as citizens of those states. The court were of opinion that the trade, allowed by the treaty, need not be direct, but might be carried on circuitously through any country of Europe, including Great Britain; and farther that, though a natural-born subject cannot throw off his allegiance, yet he may be a citizen of America for the purpose of commerce, and entitled, in the latter character, to all the benefits of the treaty. The plaintiffs therefore recovered.-Wilson v. Marryat, 8 T. R. 31. and 1 Bos. and Pull. 430.

Though a ship may have committed some act in a former voyage, for which she is liable to seizure, yet an assurance on her for a particular voyage is legal; as, if it were otherwise, the consequence might be extended ad infinitum.-Bird and others v. Appleton, 8 East, 562.

If a ship be assured at and from A. to B. and there be any illegality in her traffic during her stay at A. the assured cannot recover on a policy for a loss happening between A. to B.

Trading with an enemy without the king's licence is illegal ; as also, in time of war, to bring, even in a neutral ship, goods purchased by an agent in the enemy's country, after the eruption of hostilities; even though they were not purchased of the enemy; and the benefit of an assurance, effected for the commission of these acts, is forfeited.Potts v. Bell and others, in error, 8 T. R. 548.-Previous judgment for the defendants in the common pleas reversed.

We may conclude the present subject with this principle; that all assurances upon a voyage generally prohibited, such as to an enemy's garrison, or upon a voyage directly contrary to an express act of parliament, or to royal proclamation in time of war, are absolutely null and void.

13. PROHIBITED GOODS.

See the 6 Geo. IV. c. 107. for lists of prohibited goods inwards and outwards, pages 457 and 471. All assurances upon goods, forbidden to be exported, or imported, by positive statutes, or by the king's proclamation in time of war; or which from the nature of the commodity, and by the laws of nations, must necessarily be contraband, are absolutely null and void. Under the first division may be ranked, all offences against the revenue laws of this country: and, therefore, if an assurance were made in order to protect smuggled goods, such assurance would doubtless be of no effect, aud the insurer may

take

advantage of the objection though he knew the trade to be illegal. To this head, also, may be referred any breach of the regulations established for the protection, encouragement, and advancement of our commercial and naval interests.

There are likewise some commodities which, from their nature, as well as by the law of nations, are contraband; and, upon this subject, all writers agree in establishing this as a settled, undisputed rule, that whoever conveys any necessaries to a besieged town, camp, or port, is guilty of a breach of the law of nations. This being the case, an assurance upon such commodities must necessarily be void and of no effect, agreeably to the principles which have been advanced.

But assurances upon goods, the exportation or importation of which are forbidden by the laws of other countries, are valid; because one nation never takes notice of the revenue laws of another.-Doug. 238.

14. WAGER POLICIES.

We now proceed to treat of those policies which, by the positive statute laws of the country, are declared to be absolutely null and void. Of these the largest class are wager policies, or policies, as they are called, "upon interest or no interest."

While policies upon interest or no interest were legal, there was this difference between them and the assurance upon interest: namely, in the latter the loss actually sustained, whether total or partial, was recovered; and in the former there could be no recovery but for a total loss. The former of these kinds having given rise to wagering speculations of considerable and detrimental extent, an act of parliament passed in the 19th year of the reign of King George II. c. 37, intituled, "An act to regulate assurance on ships belonging to the subjects of Great Britain, and on merchandises or effects laden thereon." We here cite so much of it as relates to the immediate subject of inquiry. The preamble states: "Whereas it hath been found, by experience, that making assurances interest or no interest, or without farther proof of interest than the policy, hath been productive of many pernicious practices, whereby a great number of ships, with their cargoes, have either been fraudulently lost and destroyed, or taken by the enemy in time of war and such assurances have encouraged the exportation of wool, and the carrying on many other prohibited and clandestine trades, which, by means of such assurances, have been concealed, and the parties concerned secured from loss, as well to the diminution of the public revenue as to the great detriment of fair traders; and, by introducing a mischievous kind of gaming or wagering, under pretence of assuring the risk on shipping and fair trade, the institution and laudable design of making assurances hath been perverted; and that which was intended for the encouragement of trade and navigation, has, in many instances, become hurtful of and destructive to the same."

:

§ 1. "For remedy whereof it is enacted, that no assurance or assurances shall be made by any person or persons, bodies corporate or politic, or any ship or ships belonging to his Majesty, or any of his subjects, on any goods, merchandises, or effects, laden or to be laden on board of any ship or ships, interest or no interest, or without farther proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer: and that every such assurance shall be null and void to all intents and purposes.

§ 2. "Provided always that assurances on private ships of war,

fitted out by any of his Majesty's subjects solely to cruise against his Majesty's enemies, may be made by, or for, the owners thereof, interest or no interest, free of average, or without benefit of salvage to the assurer; any thing herein contained to the contrary thereof in anywise, notwithstanding."

§ 3. "Provided also, that any merchandise or effects, from any port or place in Europe or America, in the possession of the crowns of Spain or Portugal, may be assured in such way and manner, as if this act had not been made."

By the first section of the act, it is clear, that, at this day, all assurances made contrary to it, are absolutely void, and of no effect. It may now be material to consider, first, what cases have been held not to fall within its description: and, secondly, those in which the policies have consequently been holden to be void.

This act does not extend to assurances of foreign property, and on foreign ships.-Thelluson v. Fletcher, Doug. 301.-Craufurd v. Hunter, 2 T. R.

It was formerly thought, that a valued policy was a wager policy, like interest or no interest; but this idea is now exploded. Of the difference between open and valued policies much has been already said; and the origin of the latter was derived from this source: it being sometimes troublesome to the trader to prove the value of his interest, or to ascertain the quantity of his loss, he gave the assurer a higher premium to agree to estimate his interest at a precise sum. To recover upon this kind of policy, the assured need only prove, that he had an interest, without showing the value. If, indeed, it appeared, or could be made to appear, that the interest proved was merely a cover to a wager, in order to evade the statute, there is no doubt such a policy would be void.-Kent v. Bird, Cowp. 583.

In an assurance on the profits expected to arise on a cargo of molasses belonging to the plaintiff, who had a contract with government to supply the army with spruce-beer, Lord Mansfield thought it an assurable interest, and not contrary to the act of parliament, although a clause in the policy declared, that, in case of loss, it was agreed that the profits should be valued at £1000, without any other voucher than the policy." He added, "the meaning of this policy is not to evade the act of parliament, but to avoid the difficulty of going into an exact account of the quantum. I cannot distinguish it from a valued policy; and there is no pretence for saying it is a wagering one."-Grant v. Parkinson, Mich. 22 Geo. III.

So likewise, in a latter case, where the interest was declared by the policy to be on the commissions of the plaintiff as consignee of the cargo, valued at £1500, Lord Kenyon expressed a very strong opinion, that this was a good assurable interest; but, the matter being compromised, it did not come to any decision. Flint v. Le Mesurier, Sittings after Hilary Term, 1796, at Guildhall.

In another case it appeared, that an assurance had been made upon any of the packet-boats that should sail from Lisbon to Falmouth, or such other port in England as his Majesty should direct, for one year, upon any kind of goods and merchandises whatsoever. And it was agreed that the goods and merchandises should be valued at the sum assured on such packet-boat, without further proof of interest than the policy, and to make no return of premium from want of interest, being on bullion or goods. The assured had an interest in bullion on board