Insurance. In a policy of insurance there was a memorandum
stipulating, that
"The assurers shall not be liable for any charge, damage, or
loss which may arise in consequence of seizure or detention for or
on account of illicit trade, or trade in articles contraband of
war."
This provision is not to be construed that there must be a legal
or justifiable cause of
condemnation, but that there must
be such a cause for seizure or
detention.
It is not every seizure or detention which is excepted, but such
only as is made for and on account of a particular trade. A seizure
or detention which is a mere act of lawless violation, wholly
unconnected with any supposed illicit or contraband trade, is not
within the terms or spirit of the exception. And as little is a
seizure or detentions not
bona fide made upon a just
suspicion of illicit or contraband trade, but the latter used as a
mere pretext or color for an act of lawless violence, for under
such circumstances it can in no just sense be said to be made for
or on account of such trade. It is a mere fraud to cover a wanton
trespass, a pretense, and not a cause for the tort. To bring a
case, then, within the exception, the seizure or detention must be
bona fide and upon a reasonable ground. If there has not
been an actual illicit or contraband trade, there must at least be
a well founded suspicion of it -- a probable cause to impute guilt
and justify further proceedings and inquiries, and this is what the
law deems a legal and justifiable cause for the seizure or
detention.
The ship insured, when seized, had not unloaded all her outward
cargo, but was still in the progress of the outward voyage
originally designated by the owners; she sailed on that voyage from
Providence, R.I., with contraband articles on board belonging, with
the other parts of the cargo, to the owners of the ship, with a
false destination and false papers, which yet accompanied the
vessel; the contraband articles had been landed before the policy,
which was a policy on time designating no particular voyage, bad
attached; the underwriters, though taking no risks within the
exception, were not ignorant of the nature and objects of the
voyage, and the alleged cause of the seizure and detention was the
trade in articles contraband of war by the landing of the powder
and muskets which formed apart of the outward cargo. By the
principles of the law of nations, there existed under these
circumstances a right to seize and detain the ship and her
remaining cargo and to subject them to adjudication for a supposed
forfeiture notwithstanding the prior deposit of the contraband
goods; there was a legal and justifiable cause of seizure.
According to the modern law of nations, for there has been some
relaxation in practice from the strictness of the ancient rules,
the carriage of contraband goods to the enemy subjects them, if
captured
in delicto, to the penalty of confiscation, but
the vessel and the remaining cargo, if they do not belong to the
owner of the contraband goods, are not subject to the same penalty.
The penalty is applied to the latter only when there has
Page 33 U. S. 496
been some actual cooperation on their part in a meditated fraud
upon the belligerents by covering up the voyage under false papers
and with a false destination. This is the general doctrine when the
capture is made
in transitu, while the contraband goods
are yet on board. But when the contraband goods have been deposited
at the port of destination, and the subsequent voyage has thus been
disconnected with the noxious articles, it has not been usual to
apply the penalty to the ship or cargo upon the return voyage,
although the latter may be the proceeds of the contraband. And the
same rule would seem, by analogy, to apply to cases where the
contraband articles have been deposited at an intermediate port on
the outward voyage, and before it had terminated, although there is
not any authority directly in point. But in the highest prize
courts of England, while the distinction between the outward and
homeward voyage is admitted to govern, yet it is established that
it exists only in favor of neutrals who conduct themselves with
fairness and good faith in the arrangement of the voyage. If, with
a view to practice a fraud upon the belligerent and to escape from
his acknowledged right of capture and detention, the voyage is
disguised, and the vessel sails under false papers and with a false
destination, the mere deposit of the contraband in the course of
the voyage is not allowed to purge away the guilt of the fraudulent
conduct of the neutral.
Nothing is better settled both in England and America than the
doctrine that a noncommissioned cruiser may seize for the benefit
of the government, and if his acts are adopted by the government,
the property, when condemned, becomes a droit of the
government.
When there has been a
bona fide seizure and detention
for and on account of illicit or contraband trade, and by a clause
in the policy of insurance it was agreed that
"the assurers should not be liable for any charge, damage or
loss which may arise in consequence of seizure or detention for or
on account of illicit trade or trade in articles contraband of
war,"
a sentence of condemnation or acquittal, or other regular
proceeding to adjudication, is not necessary to discharge the
underwriters. If the seizure or detention be lawfully made for or
on account of illicit or contraband trade, all charges, damages,
and losses consequent thereon are within the scope of the
exception. They are properly attributable to such seizure and
detention as the primary cause, and relate back thereto. If the
underwriters be discharged from the primary hostile act, they are
discharged from the consequences of it.
The case, as stated in the opinion of the Court, was as
follows.
On 1 October, 1824, the defendants, the Merchants' Insurance
Company, underwrote a policy of insurance for the plaintiffs,
Carrington and others, for $10,000 on property on board the ship
General Carrington at and from the port of Coquimbo in Chili to any
port or ports, place or places, one or more times, for and during
the term of twelve calendar months, commencing on 5 June, 1824,
Page 33 U. S. 497
at noon and ending on 5 June, 1825, at noon. The policy is
against the usual perils, and contains the following clause.
"It is also agreed that the assurers shall not be answerable for
any charge, damage, or loss which may arise in consequence of
seizure or detention for or on account of illicit or prohibited
trade, or trade in articles contraband of war. But the judgment of
a foreign consular or colonial court shall not be conclusive upon
the parties as to the fact of there having been articles contraband
of war on board, or as to the fact of an attempt to trade in
violation of the law of nations."
The ship sailed from Providence, Rhode Island, on 21 December,
1823, cleared for the Sandwich Islands and Canton, but was
immediately bound to Valparaiso, in Chili, with such ulterior
destination as was stated in her orders, the clearance being a
usual and customary mode of clearance at that time for vessels
bound to Chili and Peru. A part of the cargo consisted of eighteen
cases of muskets and bayonets, each case containing twenty; and
three hundred kegs or quarter kegs of cannon powder, containing
about twenty-five pounds each; and these, together with the residue
of the cargo, belonged to the owners of the ship. At the
commencement of the voyage and until the final loss of the ship,
open hostilities existed between Spain and the new governments or
states of Chili and Peru. From the orders it was apparent that the
object of the voyage was to sell the cargo in Chili and Peru. The
ship was to proceed direct for Valparaiso, and was to enter that
port under the plea of a want of water. Some part of the cargo was
expected to be sold at that port, and thence the ship was to
proceed along the coast of Chili and Peru for the purposes of
trade. There is no allegation that the underwriters were not well
acquainted with the nature and objects of the voyage.
The ship arrived at Valparaiso on 17 April, 1824. At the time of
her arrival and until the loss as hereinafter stated, the Spanish
royal authorities were in possession of a portion of upper Peru,
including Quilca and Moliendo, and of the port of Callao in lower
Peru. The rest of Peru and the whole of Chili were in possession of
the Peruvian and Chilian new governments. In the harbor of
Valparaiso, sixteen casks of the powder were, with the knowledge of
the government,
Page 33 U. S. 498
sent on board of an English brig then in the harbor, and as the
plaintiffs allege, sold to the master of the brig, and all the
muskets except ten, alleged to be kept for the ship's use, were
landed in Valparaiso with the knowledge of the government.
The ship, with the remainder of her cargo on board, sailed for
Valparaiso, early in May following; arrived at Coquimbo in Chili on
the 13th day of the same month. There the remainder of the powder,
except nine casks, more or less damaged, alleged to be retained for
the ship's use, was landed in the course of the same month with the
knowledge of the government. The ship sailed from Coquimbo for
Huasco in Chili on or about 5 June following, and arrived at Huasco
in the same month, having sold at the previous port a part of her
outward cargo by permission of the government, as the plaintiffs
allege, and taken in merchandise belonging to the plaintiffs and
other citizens of the United States, to be delivered at some ports
on the coast. The ship arrived at Quilca, with the greater part of
her outward cargo still on board, on 20 June, and there sold, with
the knowledge of the government, as the plaintiffs allege, a
considerable portion of her outward cargo and delivered some of the
articles taken in at the previous ports. While lying at anchor in
the roadstead of Quilca, and before she had completed the discharge
of her outward cargo, she was seized by an armed vessel called the
Constante, commanded by one Jose Martinez, sailing under
the royal flag and acting, as the defendants allege, by the royal
authority of Spain, but alleged by the plaintiffs to be fitted out
and commissioned at Callao by Jose Ramon Rodil, the highest
military commander of the castle of Callao, holding his commission
subordinate to La Serna, the Viceroy of Peru under the King of
Spain, there being, as the defendants allege, no regular civil
government in the place, the castle of Callao being then and until
the final loss of the ship besieged by sea and land. The ship was
carried from Quilca to Callao, where certain proceedings were had
against her and her cargo on board by the orders of General Rodil,
and they were never restored, but were totally lost to the
plaintiffs. The alleged cause of the seizure and detention was the
trade in articles contraband of war by the landing of the powder
and muskets in Chili as aforesaid.
Page 33 U. S. 499
Upon the trial of the cause upon the evidence, the following
questions occurred upon which the opinions of the judges were
opposed, and thereupon it was ordered by the court, on motion of
the counsel for the plaintiffs, that the points on which the
disagreement happened should be certified to the Supreme Court of
the United States for its decision,
viz.:
"1. Whether a seizure and detention, to come within the
exception of the policy relating to contraband and illicit trade,
must be for a legal and justifiable cause."
"2. Whether, assuming the other facts to be as stated and
alleged, and taking the authority of the seizing vessel to be such
as the plaintiffs allege, there was a legal and justifiable cause
for the seizure and detention of the
General Carrington
and her cargo."
"3. Whether, assuming the other facts to be as stated and
alleged and taking the authority of the seizing vessel to be such
as the defendants allege, there was a legal and justifiable cause
for the seizure and detention of the
General Carrington
and her cargo."
"4. Whether a general in the military service of Spain,
subordinate to La Serna, Viceroy of Peru under the King of Spain
but having the actual and exclusive command of Callao, and no civil
authority existing therein, and cut off by the forces of the enemy
by sea and land from all communication with any superior civil or
military officer, could lawfully seize and detain neutral property
for contraband trade if just cause existed for a condemnation
thereof."
"5. Whether such officer, so situated, has a right to appoint
and constitute a court, of which he himself is one, for the trial
and condemnation of such property."
"6. Whether, supposing the ship to have traded in articles
contraband of war in the ports of Chili, and to have been seized
afterwards in a port of Peru, then under the royal authority,
before she had discharged her outward cargo, for and on account of
such contraband trade, the underwriters be not discharged, whether
the subsequent proceedings for her adjudication were regular or
irregular. "
Page 33 U. S. 516
MR. JUSTICE STORY delivered the opinion of the Court.
After stating the case he proceeded:
This cause comes before the Court upon a certificate of a
division of opinion of the judges of the Circuit Court for the
District of Massachusetts.
Upon the trial of the cause upon the evidence, the parties
propounded certain questions upon which the circuit court (with the
assent of the parties) certified a division of opinion for the
purpose of obtaining the final decision of this Court in regard to
them.
The first is whether a seizure and detention, to come within the
exception of the policy relating to contraband and illicit trade,
must be for a legal and justifiable cause. The question here
propounded is not whether there must be a legal or justifiable
cause for condemnation, but simply whether there must not be such
cause for the seizure and detention. And we are of opinion that the
question ought to be answered in the affirmative. The language of
the exception, when properly construed, leads to this conclusion,
and it is confirmed by authorities standing upon analogous clauses.
The language is
"The assurers shall not be liable for any charge, damage or loss
which may arise in consequence of seizure or detention for or on
account of illicit trade or trade in articles contraband of
war."
It is not, then, every seizure or detention which is excepted,
but such only as is made for and on account of a particular trade.
A seizure or detention which is a mere act of lawless violence
wholly unconnected with any supposed illicit or contraband trade is
not within the terms or spirit of the exception. And as little is a
seizure or detention not
bona fide made upon a just
suspicion of illicit or contraband trade, but the latter used as a
mere pretext or color for an act of lawless violence, for under
such circumstances it can in no just sense be said to be made for
or on account of such trade.
Page 33 U. S. 517
It is a mere fraud to cover a wanton trespass; a pretense and
not a cause for the tort. To bring a case, then, within the
exception, the seizure or detention must be
bona fide and
upon a reasonable ground. If there has not been an actual illicit
or contraband trade, there must at least be a well founded
suspicion of it, a probable cause to impute guilt and justify
further proceedings and inquiries, and this is what the law deems a
legal and justifiable cause for the seizure or detention. The
general words of the policy cover the risks of restraints and
detainments of all kings, princes, and people. The exception
withdraws from it such as are
bona fide made for and on
account of illicit or contraband trade. So that upon the mere terms
of the exception there would not seem any real ground for doubt.
But if there were, the next succeeding clause associated with it
demonstrates that such must have been the understanding of the
parties. It is there said that the judgment of a foreign consular
or colonial court shall not be conclusive upon the parties as to
the fact of there having been articles contraband of war on board,
or as to the fact of an attempt to trade in violation of the laws
of nations. Now if a mere lawless seizure or detention under the
pretext of illicit and contraband trade were within the exception,
the inquiry whether there had been contraband articles on board, or
an attempt of illicit trade, would be in most if not in all cases
wholly unimportant and nugatory to the assured for whose benefit
the clause is introduced, since the sentence would always establish
a pretense for the seizure and detention, although not a
justifiable cause for it. The reasonable interpretation of the
clause must be that it was introduced to enable the assured to
disprove the existence of justifiable cause for the seizure or
detention by showing that the facts did not warrant it.
We think that the authorities cited at the bar lead to the same
conclusion. In
Church v.
Hubbard, 2 Cranch 187, 2 Cond. 385, where the
exception was "that the insurers do not take the risk of illicit
trade with the Portuguese, and the insurers are not liable for
seizure by the Portuguese for illicit trade," the main question was
whether an attempt to trade not consummated by actual trading was
within the exception. The Court held that it was. On that occasion,
THE CHIEF JUSTICE said
"No seizure not justifiable under the laws and regulations
established by the Crown of Portugal for the
Page 33 U. S. 518
restriction of foreign commerce with its dependencies can come
within this part of the contract, and every seizure which is
justifiably by those laws and regulations must be deemed within
it."
And applying this language to the circumstances of the present
case, we may add that no seizure or detention not justifiable by
the law of nations can come within the present exception, and every
seizure which is justifiable by the law of nations must be deemed
within it. The cases of
Smith v. Delaware Insurance
Company, 3 Serg. & Rawle 74, and
Faudel v. Phoenix
Insurance Company, 4 Serg. & Rawle 29;
Johnston and
Weir v. Ludlow, 1 Caines Cas. in Error 29; S.C. 2 Johns.Cas.
481, [
Footnote 1] adopt a
similar doctrine, if they do not proceed beyond it. The case of
Higginson v. Pomroy, 11 Mass. 104, contained an exception
of "illicit trade with the Spaniards," and the court held that the
exception extended to every seizure and detention suggested by the
prohibitions of trade and intercourse, as the means of enforcing
them, and whether of prevention or of punishment for infraction,
and that therefore it extended to cases where the charge of illicit
trade with the Spaniards might be ultimately repelled, and where
the property seized might be in consequence acquitted under the
circumstances of the particular case. But this supposes that there
was probable or justifiable cause for the seizure,
bona
fide existing, and the court explicitly assented to the
general doctrine in
Church v. Hubbard. It is true, that
the learned Chief Justice, in delivering the opinion of the court,
added, that
"
perhaps (we may add), although not necessary to the
present decision, even arbitrary acts of the Spanish colonial
governments, if assumed to be justified on their parts by the
prohibitions of trade and intercourse, are, we think, within the
exception of seizure for illicit trade."
This is professedly a mere
dictum of the court, and
giving it every reasonable force as authority, it proceeds on the
supposition that such arbitrary acts are
bona fide done,
and are not mere pretexts to cover an illegal seizure.
The second question is whether, assuming the other facts to be
as stated and alleged above, and taking the authority of the
seizing vessel to be such as the plaintiffs allege (that is to say,
of an armed vessel fitted out
Page 33 U. S. 519
and commissioned at Callao by Rodil), there was a legal and
justifiable cause for the seizure of the
General
Carrington and her cargo. The third is precisely the same in
terms, except taking the authority of the armed vessel to be such
as the defendants allege (that is to say, to be an armed vessel
sailing under the royal Spanish flag, and acting by the royal
authority of Spain).
Both these questions present the same general point -- whether
there was, under the circumstances of the case, a legal and
justifiable cause for the seizure and detention of the ship and her
cargo. The facts material to be taken into consideration in
ascertaining this point are that the ship, when seized, had not
landed all her outward cargo, but was still in the progress of the
outward voyage originally designated by the owners; that she sailed
on that voyage from Providence with contraband articles on board,
belonging, with the other parts of the cargo, to the owners of the
ship, with a false destination and false papers, which yet
accompanied the vessel; that the contraband articles had been
landed, before the policy, which is a policy on time, designating
no particular voyage, had attached; that the underwriters, though
taking no risks within the exception, were not ignorant of the
nature and objects of the voyage, and that the alleged cause of the
seizure and detention was the trade in articles contraband of war
by the landing of the powder and muskets already mentioned.
If by the principles of the law of nations there existed under
these circumstances a right to seize and detain the ship and her
remaining cargo, and to subject them to adjudication for a supposed
forfeiture, notwithstanding the prior deposit of the contraband
goods, then the questions must be answered in the affirmative, that
there was a legal and justifiable cause.
According to the modern law of nations, for there has been some
relaxation in practice from the strictness of the ancient rules,
the carriage of contraband goods to the enemy subjects them, if
captured
in delicto, to the penalty of confiscation; but
the vessel and the remaining cargo, if they do not belong to the
owner of the contraband goods, are not subject to the same penalty.
The penalty is applied to the latter only when there has been some
actual cooperation on their part in a meditated fraud upon the
belligerents by covering up the voyage under false papers and with
a false destination. This
Page 33 U. S. 520
is the general doctrine when the capture is made
in
transitu, while the contraband goods are yet on board. But
when the contraband goods have been deposited at the port of
destination, and the subsequent voyage has thus been disconnected
with the noxious articles, it has not been usual to apply the
penalty to the ship or cargo upon the return voyage, although the
latter may be the proceeds of the contraband. And the same rule
would seem by analogy to apply to cases where the contraband
articles have been deposited at an intermediate port on the outward
voyage, and before it had terminated, although there is not any
authority directly in point. But in the highest prize courts of
England, while the distinction between the outward and homeward
voyage is admitted to govern, yet it is established that it exists
only in favor of neutrals who conduct themselves with fairness and
good faith in the arrangements of the voyage. If, with a view to
practice a fraud upon the belligerent and to escape from his
acknowledged right of capture and detention, the voyage is
disguised and the vessel sails under false papers and with a false
destination, the mere deposit of the contraband in the course of
the voyage is not allowed to purge away the guilt of the fraudulent
conduct of the neutral. In the case of
The Franklin, in
1801, 3 Rob. 217, Lord Stowell said
"I have deliberated upon this case, and desire it to be
considered as the settled rule of law received by this Court that
the carriage of contraband with a false destination will make a
condemnation of the ship, as well as the cargo."
Shortly afterwards, in the case of
The Neutralitet,
1801, 3 Rob. 295, he added,
"The modern rule of the law of nations is certainly that the
ship shall not be subject to condemnation for carrying contraband
goods. The ancient practice was otherwise, and it cannot be denied
that it was perfectly justifiable in principle. If to supply the
enemy with such articles is a noxious act with respect to the owner
of the cargo, the vehicle which is instrumental in effecting that
illegal purpose cannot be innocent. The policy of modern times has,
however, introduced a relaxation on this point, and the general
rule now is that the vessel does not become confiscated for that
act. But this rule is liable to exceptions. Where a ship belongs to
the owner of the cargo, or where the ship is going on such service
under a false destination or false
Page 33 U. S. 521
papers, these circumstances of aggravation have been held to
constitute excepted cases out of the modern rule, and to continue
them under the ancient rule."
The cases in which this language was used, were cases of capture
upon the outward voyage. [
Footnote
2] The same doctrine was afterwards held by the same learned
judge to apply to cases, where the vessel had sailed with false
papers, and a false destination upon the outward voyage, and was
captured on the return voyage. [
Footnote 3] And, finally, in the cases of
The Rosalia
and The Elizabeth, in 1802, 4 Rob. note to table of cases, the
Lords of Appeal in Prize Cases held that the carriage of contraband
outward with false papers will affect the return cargo with
condemnation. These cases are not reported at large. But in the
case of
The Baltic, 1 Acton 25, and that of
The
Margaret, 1 Acton 333, the Lords of Appeal deliberately
reaffirmed the same doctrine. In the latter case, Sir William
Grant, in pronouncing the judgment of the court said
"The principle upon which this and other prize courts have
generally proceeded to adjudication in cases of this nature (that
is, where there are false papers), appears simply to be this --
that if a vessel carried contraband on the outward voyage, she is
liable to condemnation on the homeward voyage. It is by no means
necessary that the cargo should have been purchased by the proceeds
of this contraband. Hence, we must pronounce against this appeal,
the sentence (of condemnation) of the court below being perfectly
valid and consistent with the acknowledged principles of general
law."
We cannot but consider these decisions as very high evidence of
the law of nations as actually administered, and in their actual
application to the circumstances of the present case, they are not,
in our judgment, controlled by any opposing authority. Upon
principle, too, we trust that there is great soundness in the
doctrine as a reasonable interpretation of the law of nations. The
belligerent has a right to require a frank and
bona fide
conduct on the part of neutrals in the course of their commerce in
times of war, and if the latter will make use of fraud and false
papers to elude the just rights of the belligerents, and to cloak
their own illegal purposes, there is
Page 33 U. S. 522
no injustice in applying to them the penalty of confiscation.
The taint of the fraud travels with the party and his offending
instrument during the whole course of the voyage and until the
enterprise has, in the understanding of the party himself,
completely terminated. There are many analogous cases in the prize
law where fraud is followed by similar penalties. Thus, if a
neutral will cover up enemy's property under false papers, which
also cover his own property, prize courts will not disentangle the
one from the other, but condemn the whole as good prize. That
doctrine was solemnly affirmed in this Court in the case of
The St.
Nicholas, 1 Wheat. 417, 3 Cond. 614.
Upon the whole, our opinion is that the general question
involved in the second and third questions, whether there was a
legal and justifiable cause of capture under the circumstances of
the present case, ought to be answered in the affirmative. The
question as to the authority of the cruiser to seize, so far as it
depends upon her commission, can only be answered in a general way.
If she had a commission under the royal authority of Spain, she was
beyond question entitled to make the seizure. If Rodil had due
authority to grant the commission, the same result would arise. If
he had no such authority, then she must be treated as a
noncommissioned cruiser, entitled to seize for the benefit of the
Crown, whose acts, if adopted and acknowledged by the Crown or its
competent authorities, become equally binding. Nothing is better
settled both in England and America than the doctrine that a
noncommissioned cruiser may seize for the benefit of the
government, and if his acts are adopted by the government, the
property, when condemned, becomes a droit of the government.
[
Footnote 4]
The fourth and fifth questions involve the point as to the
authority of Rodil. The fourth is in the following terms. Whether a
general in the military service of Spain, subordinate to La Serna,
Viceroy of Peru, under the King of Spain, not having the actual and
exclusive command at Callao, and no civil authority existing
therein, and cut off by the forces of the
Page 33 U. S. 523
enemy by sea or land from all communication with any superior
civil or military officer, could lawfully seize and detain neutral
property from contraband trade, if just cause existed for a
condemnation thereof. The fifth question is whether such officer,
so situated, has a right to appoint and constitute a court, of
which he himself is one, for the trial and condemnation of such
property. These questions are both understood to refer to the
supposed authority of Rodil, as an officer of the government, to
make the seizure in his official capacity. We are of opinion that
no sufficient facts are stated to enable this Court to give any
opinion as to the nature or extent of the authority of such an
officer under the laws of Spain or his commission from and under
the Spanish government. We shall therefore return an answer to
them, declaring that they are too imperfectly stated to admit of
any opinion to be given by this Court.
The sixth and last question is whether, supposing the ship to
have traded in articles contraband of war in the ports of Chili,
and to have been seized afterwards in a port of Peru, then under
the royal authority, before she had discharged her outward cargo,
for and on account of such contraband trade, the underwriters be
not discharged, whether the subsequent proceedings for her
adjudication were regular or irregular. This question is understood
to raise the point whether, if the seizure and detention be
bona fide for and on account of illicit or contraband
trade, a sentence of condemnation or acquittal, or other regular
proceedings to adjudication, are necessary to discharge the
underwriters. We are of opinion that they are not. If the seizure
of detention be lawfully made for or on account of illicit or
contraband trade, all charges, damages, and losses consequent
thereon are within the scope of the exception. They are properly
attributable to such seizure and detention as the primary cause,
and relate back thereto. If the underwriters be discharged from the
primary hostile act, they are discharged from the consequences of
it. The whole reasoning in
Church v.
Hubbard, 2 Cranch 187, presupposes that if the
underwriters be exempted from the risk of a justifiable seizure for
illicit trade, they are not accountable for losses consequent
thereon, whether arising from a sentence of condemnation or
otherwise.
Page 33 U. S. 524
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts, and on the points and questions on which the judges
of the said circuit court were divided in opinion, and which were
certified to this Court for its opinion agreeably to the act of
Congress in such case made and provided, and was argued by counsel,
on consideration whereof it is ordered and adjudged by this Court
that upon the question so certified by the Circuit Court for the
District of Massachusetts, upon which the judges of that court were
opposed in opinion, the opinions of this Court be certified to that
court as follows, to-wit:
Upon the first question, "whether a seizure and detention, to
come within the exception of the policy relating to contraband and
illicit trade, must be for a legal and justifiable cause." That it
is the opinion of this Court that the seizure and detention, to
come within the exception of the policy relating to contraband and
illicit trade, must be for a legal and justifiable cause.
Upon the second question,
"whether, assuming the other facts to be as stated and alleged
above, and taking the authority of the seizing vessel to be such as
the plaintiffs allege, there was a legal and justifiable cause for
the seizure and detention of the
General Carrington and
her cargo."
That it is the opinion of this Court that assuming the facts
stated in that question, there was a legal and justifiable cause
for the seizure and detention of the ship
General
Carrington and cargo.
Upon the third question,
"whether, assuming the other facts to be as stated and alleged
above, and taking the authority of the seizing vessel to be such as
the defendants allege, there was a legal and justifiable cause for
the seizure and detention of the
General Carrington and
her cargo."
That it is the opinion of this Court, assuming the facts stated
in that question, there was a legal and justifiable cause for the
seizure of the ship
General Carrington and cargo. If the
armed vessel referred to was lawfully commissioned by Rodil (upon
which this Court can pronounce no opinion), then she is to be
deemed entitled to make the seizure and detention in the same
manner as if she had been commissioned by the royal authority of
Spain. But if she was not so commissioned, then the parties making
the seizure and detention are to be treated as noncommissioned
cruisers seizing for the government of Spain,
Page 33 U. S. 525
and their validity depends upon their adoption and recognition
by the competent authorities of Spain according to the general
principles of the law of nations on this subject.
Upon the fourth question,
"whether a general in the military service of Spain, subordinate
of La Serna, Viceroy of Peru under the King of Spain, but having
the actual and exclusive command of Callao, and no civil authority
existing therein, and cut off by the forces of the enemy by sea and
land from all communication with any superior civil or military
officer, could lawfully seize and detain neutral property for
contraband trade, if just cause existed for a condemnation
thereof."
And the fifth question,
"whether such officer, so situated, has a right to appoint and
constitute a court, of which he himself is one, for the trial and
condemnation of such property."
That it is the opinion of this Court that the facts are too
imperfectly stated to enable this Court to ascertain and decide
what are the nature and extent of the powers of such an officer
according to the laws of Spain or his commission from and under the
Spanish government.
Upon the sixth question,
"whether, supposing the ship to have traded in articles
contraband of war in the ports of Chili, and to have been seized
afterwards in a port of Peru, then under the royal authority,
before she discharged her outward cargo, for and on account of such
contraband trade, the underwriters be not discharged, whether the
subsequent proceedings for her adjudication were regular or
irregular."
That it is the opinion of this Court that under the
circumstances stated in that question, the underwriters are
discharged whether the subsequent proceedings, after the seizure
and detention of the ship and cargo for their adjudication, were
irregular or not.
[
Footnote 1]
See also Laing v. United Insurance Company, 2
Johns.Cas. 174; S.C. 2 Johns.Cas. 487;
Tucker v. Juhel, 1
Johns. 20.
[
Footnote 2]
See also The Edward, 4 Rob. 68.
[
Footnote 3]
See The Nancy, 3 Rob. 122;
The Christianberg,
6 Rob. 376.
[
Footnote 4]
The Amiable
Isabella, 6 Wheat. 1, 5 Cond. 1;
The Dos
Hermanos, 10 Wheat. 306, 6 Cond. 109;
The
Melomane, 5 Rob. 41;
The Elsebe, 5 Rob. 174;
The
Maria Francoise, 6 Rob. 282.
