ÆäÀÌÁö À̹ÌÁö
PDF
ePub

69

A leading case is SCARAMANGA v. STAMP. It was a case arising out of a charter party (in which there is also an implied warranty not to deviate), where a disabled vessel was taken in tow, causing considerable delay to the other vessel. The court held, under the facts, that the delay was unjustifiable.

On the other hand, in Crocker v. Jackson,7° Judge Sprague held that a departure of the vessel from her course in order to ascertain whether those on board a vessel in apparent distress needed relief, and the delay in order to offer such relief, was not a deviation, though such action for the mere purpose of saving property would be. He held, also, that, if both motives existed, it would not be a deviation, and that, if the circumstances were not decisive, or were ambiguous, as to the motives of the master of the salving vessel, the court would give him the benefit of the doubt.

Distinction between Deviation and Change of Voyage

It is important to bear in mind the distinction between a deviation and an entire change of voyage. As to the former, a mere intention formed to deviate does not avoid the policy until that point is reached where the act of deviating commences. Up to that point the policy is still in force. On the other hand, a change of voyage avoids the policy ab initio, because that substitutes a different risk from the one on which the underwriter has made his calculations.

The test as between the two is that, as long as the termini remain the same, and the master, on leaving, intends to go to the terminus named, and then goes out of his way, or is guilty of an unreasonable delay, it is a deviation; but, if the terminus is changed, then it is a change of voyage. This is illustrated by Marine Ins. Co. of Alexandria v.

69 4 C. P. D. 316; Id., 5 C. P. D. 295. 701 Spr. 141, Fed. Cas. No. 3,398.

Tucker."

There, a vessel was insured at and from Kingston, Jamaica, to Alexandria. The captain, at Kingston, took on a cargo for Baltimore, intending to go to Baltimore, and then to Alexandria. His ship was captured before reaching the Capes. The court held that this was merely an intended deviation, as the actual deviation would not have commenced until he had gone inside of the Capes to the parting of the ways for the two ports, and that, as no man could be punished for a mere intention, the underwriters were liable. In such case, had he intended to go to Baltimore alone, and not to Alexandria (the terminus named in the policy) at all, it would have been a change of voyage, and his policy would have been void at once.

SAME-ILLEGAL TRAFFIC

29. It is an implied condition that a vessel shall not engage in illegal trade.

This is but another phase of the principle that a contract tainted with illegality is void. Hence any trade which contemplates dealing with an alien enemy, or a violation of the revenue laws of the country whose law governs the policy, renders the contract void.72

Care must be taken to remember the difference between the effect of illegal trade known to the parties and its effect when unknown. Even when equally known to both parties, the contract is void, because the court will not lend its aid to enforce such contracts. On the other hand, such a voyage known to one party and unknown to the other is void on a different principle, namely, that the failure of the insured to give the underwriter information of the character of the trade avoids the policy on the ground of misrepresentation or concealment.

71 3 Cranch, 357, 2 L. Ed. 466.

§ 29.

72 Jansen v. Mines Co., [1902] A. C. 484.

An interesting case on this subject is the decision of Mr. Justice Story in ANDREWS v. ESSEX FIRE & MARINE INS. CO.73 There insurance had been effected on the cargo to proceed to Kingston, Jamaica, and, if not allowed to sell there, then to Cuba. It was known to both parties that the British government forbade American vessels carrying such cargoes there, but both parties thought that the prohibition might be removed by the time the vessel landed. The court held that the knowledge of the underwriters that the trade was illicit did not make them assume that risk, and that it was a risk not covered by the policy.

In Clark v. Protection Ins. Co., which also was a decision of Mr. Justice Story, when the ship arrived at the port of New Orleans the master took on board a chain cable, which had been bought at his request in Nova Scotia, brought there on another ship, and smuggled on board his vessel. After this she sailed from the port of New Orleans, and was lost. The underwriters contended that this act vitiated the entire insurance. The court held, however, that, as the insurance was originally valid, any subsequent illegality in the voyage did not affect the insurance as to property not tainted with the illegality, although no recovery could be had for the special property which was so tainted.

In Craig v. United States Ins. Co.," an American during the war between the United States and England took out a British license. Mr. Justice Washington held that, as this was an illegal voyage throughout, there could be no remedy upon an insurance policy covering it.

Calbreath v. Gracy 73 involved a somewhat similar ques

78 3 Mason, 6, Fed. Cas. No. 374.

741 Story, 109, Fed. Cas. No. 2,832. Here the penalty of forfeiture imposed by the revenue law for smuggling was upon the vessel bringing the cable, not upon the vessel receiving it.

75 Fed. Cas. No. 3,340, Pet. C. C. 410.

761 Wash. C. C. 219, Fed. Cas. No. 2,296. Sce, also, Schwartz v.

tion, though the warranty in that case was express, and not implied. The warranty was of neutrality, the vessel and cargo being warranted as American, but during the voyage she was documented as Spanish, and while so documented was captured by a foreign privateer, and afterwards recaptured by a British privateer. The court held that the warranty that the vessel was American implied a warranty that there should be the necessary documents to show it, and that the act of the insured in having their vessel documented as Spanish defeated their right of recovery. Violation of Revenue Laws of Another Country

It is a principle of English law that the English courts pay no attention to the revenue laws of another country; and therefore it is not illegal per se to endeavor to smuggle goods into another country. As such an act would increase the risk, failure to tell the underwriter, at the time of effecting the insurance, that it was contemplated, would be a concealment, and avoid the policy on that ground. But, if both the underwriter and insured knew that such action was contemplated, the policy would be valid, although under exactly similar circumstances an attempt to smuggle into England would be an illegal contract, and avoid the policy.

Mr. Parsons, in his work on Marine Insurance," states this as a general principle of insurance law, equally applying to this country, and cites some American decisions to sustain him. One of these is the decision of Mr. Justice Story in Andrews v. Essex Fire & Marine Ins. Co., above referred to; and certainly in that opinion the justice seems to assume that the underwriters would be bound if they knew that illegal trade with a port of a foreign country was

Insurance Co. of North America, 3 Wash. C. C. 117, Fed. Cas. No. 12,504.

771 Pars. Mar. Ins. p. 34. In Gow, Mar. Ins. (London, 1913) 269, this doctrine is characterized as a "slight obliquity of vision, or a temporary blindness of justice."

contemplated. The decision cannot be considered as absolutely in point, as the underwriters were held not liable on another ground.

Insurance on vessels or goods engaged in blockade running is not illegal. Such a business is not criminal, or immoral, or against public policy. It only affects the belligerent who has established the blockade. Neutrals may run it if they can, and their only risk is of being caught. A vessel cannot be seized on a subsequent voyage for such an act, which shows that there is nothing immoral about it. Accordingly such insurance is common.78

But it is criminal to violate the revenue laws of another country, if made so by those laws; and such violation should be against public policy in any country, and render a contract based upon such act void, even as between the parties.

In Oscanyan v. Winchester Arms Co.," a Turkish consul living in this country made a contract with the Winchester Arms Company by which he was to receive a commission on all the arms of that company which he influenced his government to buy. When he sued for such commissions, the Supreme Court decided that the contract was void as against public policy, and not enforceable. It was urged upon the court that, while such contracts were void under our law, they were quite the proper thing under Turkish law, and that it was a recognized right of Turkish officials to serve their government in that way. The Supreme Court, however, repudiated the argument, and held that it was a question regarding our own citizens, and that, if such transactions might have the effect of demoralizing them, it would not enforce any rights based upon them. This decision, though not exactly in point on the question above discussed, would, at least, indicate a pos

78 Maritime Ins. Co., Ltd., v. M. S. Dollar S. S. Co., 177 Fed. 127, 100 C. C. A. 547. Gow, Mar. Ins. 270.

[blocks in formation]
« ÀÌÀü°è¼Ó »