Johnston v. Ludlow

2 Johns. Cas. 481 | N.Y. Sup. Ct. | 1802

Gold,

Senator. On the first point, the domicil of the plaintiffs being established here, without any fraudulent motive, but' for fair purposes of commerce, this court ought not to sanction the right of Great Britain to seize and confiscate their effects, as has been done in this instance. The case of Maryatt v. Wilson, cited from 1 Bos. & Pull. Rep. p. 430, which arose under the article in our late treaty with England, regulating our East India trade, is not inapposite. In that case, the English court conceded to a native subject domiciled in America, the right of an American citizen, in relation to commerce with the Indies. On the second point, that there may be circumstances and occasions, in which tin in blocks and plates, may become contraband, is not to be controverted ; but while Judge Kelsall professes to detail, not only the causes for condemnation, but those on which he did not ground himself, he does not disclose a case which would warrant the conclusion, upon the article in question, of contraband of war. He rests himself upon the bare shipment of the article ; this cannot be subscribed to, nor will the allowed effect of the admiralty sentence, as prima facie evidence, avail the defendant here; as the presumption of facts to warrant a condemnation, is repelled by a detail of the precise grounds on which the sentence was pronounced. On the last point raised by the underwriter, that the warranty protects him against any loss by seizure or detention, for, or on account of any illicit trade or contraband of war, nothing -in this provision is relevant to the case before the court. The clause literally extends only to partial losses occasioned by a seizure or temporary detention, not followed by a condemnation ; and if extended farther, it cannot have been the intention of the parties to the policy to throw upon the assurer a loss, where there could be no fault in him; when no illicit trade or contraband existed in fact, merely because a pretext of that kind is set up to cloak the condemnation. The expression, “for and on account of," is not equivalent or convertible into the words under pretence of, but may well be understood to mean for the cause of; implying the actual existence of either illicit trade or contraband, as producing such loss or damage. No other construction ought to be admitted, unless the language of the contract is plain and unequivocal, necessarily inducing a contrary interpretation. The facts in the cause do not, as the law is now settled in Great Britain, bear out the conclusion of the vice-admiralty court; nor can any thing in the warranty of the assured protect the underwriter. I am of opinion that the judgment of the court below ought to be reversed.

This being the opinion of a majority of the court, it was thereupon ordered and adjudged, that the judgment of the supreme court be reversed; and that the plaintiffs in error recover the sum assessed by the jury in the special verdict, as for a total loss ; and that the court below tax the costs for the plaintiffs in error, as if judgment had been given for them as for a total loss; and that the plaintiffs in error also recover interest on the judgment so found for a total loss, from the time of rendering the judgment in the .supreme court, until the third Tuesday of April next, to be assessed and taxed by the clerk of this court, and that the record be remitted, &c.

Judgment of reversal.(^b)

b (b) See 1 Phillips on Insurance, 712, 715 ; 2 id. 698. 2 Duer on Insurance, 633, and n. (a) and 3 id. under the head of Excepted Risks.