Craig v. United States Ins.

1 Pet. C.C. 410 | U.S. Circuit Court for the District of Pennsylvania | 1817

WASHINGTON, Circuit Justice,

charged the jury. Some important questions have been agitated in this cause. If it were necessary to decide the first and second points which have been argued, their intrinsic difficulty, as well as our respect for the courts of our own country, which have differed from each other in their decisions upon one of the questions, would have determined us to recommend a special verdict, or an agreed case, in order that we might have an opportunity of giving to those questions a very serious examination. But we do not think it necessary at present, to give any opinion upon more than one of the questions which have been argued, and which we think will finally dispose of the cause. That question is, can the plaintiff recover upon a contract of insurance, which obliges him to sail upon the voyage insured, under a license or protection granted by the enemy of the United States? In arguing this point, the plaintiff’s counsel have had a very narrow strait to navigate. Seylla on the one hand, and Charybdis on the other. If there was no Sidmouth license on board, they had reason to apprehend being wrecked on the warranty which requires them to have it. If they had it on board, there was equal danger of a similar fate, on the ground of Its infecting the voyage with illegality. If, in this perilous voyage they have failed of success, it is but justice to them to say, that it has not ■arisen from want of skill in themselves.

The plaintiff’s counsel, in the first place deny that there was a Sidmouth license on board, because it is said that the license which ■ they have produced, as that which the captain has sworn he had on board, is not proved to be in the handwriting of Lord Sidmouth. If this be in fact the case, upon the principle that that which does not appear, is to be considered as not existing, then ■ the plaintiff has put himself out of court; inasmuch as he bound himself to have such a license on board, and he must establish that fact before he can expect to recover. But, if the non-existence of such a paper could benefit the plaintiff, instead of destroying his right of recovery, it would not be competent to him to deny that there was such a paper on board, in the face of his own declaration which avers the contrary in the most direct terms. But, admitting there was on board a paper purporting to be a Sidmouth license, it is then contended that it was altogether inoperative as a protection, inasmuch as it was granted to one Taylor and others, and there is no .evidence to connect the plaintiff with Taylor, or to show how he derived a right to possess and use it; that as licenses are to be construed strictly, and will protect no voyage unless it be that mentioned in it, and conducted by the party in whose favour it is granted, or by his agents, this license was, in the hands of the plaintiff, of no more consequence than a piece of blank paper. The general principle, as laid down, is correct, and if it were important for the interests of the defendants to urge this argument against the validity of this license, it might come from them with some force, and certainly with no bad grace. But, it appears to come very awkwardly from the plaintiff who had it on board his vessel, who used it successfully for the purpose of protecting his property from capture, and now produces it in court. That he became possessed of it in a proper and legal manner, he ought to be the last man in the world to question.

But, admit the whole force of the argument, then, as in the former case, the plaintiff has put himself out of court; since his warranty, construed upon the foundation of that good faith which emphatically governs contracts of insurance, bound him to have on board, not merely a paper purporting to be a Sidmouth license, but a real operative license to the purpose of protecting his property against hostile capture. This was necessarily implied in the stipulation, as is incontestably proved by the peace premium, for which the defendants were contented to take the risk. To attempt then, to shift them off with a blank, piece of paper which would afford no protection against British capture, would savour very strongly of a fraud, which could not receive the countenance of any court. But this whole argument proceeds upon the mistaken supposition, that it is the having of the license on board which invalidates the contract, whereas it is the stipulation in the contract, obliging the insured to have it, which produces this effect, if on the further examination of this question, it should appear that the license rendered the voyage illegal. If, notwithstanding the contract, there be in fact no license on board, then the voyage would not be illegal, although the plaintiff could not recover because he has not complied with his contract. If he has it on board, he gets rid of that objection, but then he exposes himself to the objection, that his voyage is illegal. But, whether he in fact had it on board or not, does in no respect remove the objection to the validity of the contract, which is bottomed upon a stipulation _ to have it.

But it is contended, that this warranty constitutes a condition subsequent, and therefore, if it be to do an illegal act, it is void, but the other parts of the contract continue in force. It is said to be a condition subsequent, because the license could not operate until the vessel got to sea, which was subsequent to the inception of the voyage when she broke ground. Now admitting that the fact is so, which is certainly going a great way, still the legal consequences would not follow. If it did, then warranties to sail with convoy would be in almost every case conditions subsequent, as the insured very seldom joins the convoy at the place where the inception of the voyage takes place. But it is unquestionable, that every warranty in a policy, whether they be express or implied, constitutes a condition precedent. Not precedent in point of time to the inception of the voyage, but to the plaintiff’s right of recovery. That is, he cannot in any instance where he has entered into a warranty, recover against the underwriters without first averring and proving performance of those stipulations.

The next enquiry is, was this an illegal voyage? This question is settled, at least in the courts of the United States, beyond all controversy. The cases of The Julia, 8 Cranch [12 U. S.] 181, The Aurora, Id. 203, The Hiram, 1 Wheat. [14 U. S.] 440, and The Ariadne, 2 Wheat. [15 U. S.] 143, proceed and are decided on that ground. This case is in no respect distinguishable from those, and particularly from that of The Ariadne; cer.tainly it is not in principle. If, then, this voyage was illegal, what is the consequence as to the contract? The rule is, that a contract of insurance made on a voyage which is opposed to the common, statute, or maritime laws of the country, where it is effected, is void. In other words, the courts of that country will assist neither of the parties to enforce it, or to recover damages against the other for a breach of it. The plaintiff, whether he be the assured to recover the sum insured, or the insurer to recover back the loss in case he has paid it, is turned out of court; not because he is more in fault than the defendants, for they are in pari delicto, but because he is the plaintiff, and the defendant retains what he has received, and repels the claims of the plaintiff altogether, from the adventitious circumstance, that he is the defendant, and potior est con-ditio possidentis. I wish it to be understood, that I mean not to impute crime, or even intentional impropriety, to either of these parties. I have no doubt that they acted with the most perfect innocence, mistaking the law, as many eminent legal characters did, at a later period than that when this contract was entered into.

Upon the whole, it is the opinion of the court that the plaintiff is not entitled to recover in this action.

The plaintiff suffered a nonsuit.