Id. 403, Constable v. Noble. Voyage must not be illegal. See the Cases in Park, p. 353By Lord Ken 356. yon, 8 Term Rep. 46. 1d. 562, Bird v. Appleton; Id. 569, by Lawrence, J. 4 Taunton, 856, Sewell v. Royal surance. Licénces. " At and from," &c. the voyage proposed. The voyage must be commenced within a reasonable time, for if the ship be laid by for a considerable season with the knowledge of the owner, the insurer will be discharged. "At and from Bengal to England" means the first arrival at Bengal, and the first arrival is always implied in such cases. "At and from Jamaica to London :" the vessel which was warranted to sail after January 12, moved from one part to another in Jamaica before that day and was lost; the Court held, that under the word at the ship was protected in such a course. But a policy" at and from Lyme to London" will not shelter a cargo at Bridport, although that place is within the port of Lyme. may If the voyage be prohibited by the law of England the policy is void. And if there be an infirmity in any part of the integral voyage, the assured cannot recover upon a policy on any part of it, although the insurance be effected on the homeward course, which, taken by itself, would be legal. Still, if the voyages be distinct, although there be an illicit traffic during the outward, a policy would be good on the homeward, for the illegality must exist during the course of the voyage insured. South Sea licences are now abolished, by 55 Geo. 3, ch. 57, & 141, and it will therefore be unnecessary Park, p. 357, to do more than refer to the books on insurance upon Marshall,p.175. the subject. The King's licence, given by virtue of his royal prerogative, is granted for the preservation of trade, and it enables his own subjects, or those of foreign states, such as he may please to endow with the authority, to prosecute adventures which otherwise would be out of 1 Bingham,473, Lemcke v. 16 East, 197, the law's protection, and on which no insurances could in such case be made. This instrument is construed liberally (m), at least at the present day, the object being to facilitate the commerce of the country, and therefore, a misdescription of the person's name will not Vaughan. invalidate the licence (n). Nor will it be void, although the party interested be a foreigner residing here under Feise. Newnan alien licence, and the adventure be carried on by his ham. agents, the instrument being granted to "F and Co. "and others." And it is no matter that the agent be not Rawlinson v. himself interested in the goods. But something must be shown to connect the party using the licence with the lawful possession of it, as, that one party is agent for another, and it is certainly not enough to show that the licence was intended to legalize a particular adventure without establishing a title to it. (m) An agent, obtaining a licence, did not represent to the Privy Council that his application was on behalf of a hostile trader; the policy was not vitiated by this concealment. 5 Taunton, 674, Flindt v. Scott: the authority of Mennet v. Bonham, 15 East, 477, is shaken by this case. It is no objection to the policy, that the loss has been occasioned by an act of the alien's own government. Same case as above; and see 5 Taunton, 711, Anthony v. Moline; Id. 716, Schnakoneg v. Andrews. (n) Lord Ellenborough held the contrary, it being the policy at that time to construe licences strictly. 14 East, 484, Klingender v. Bond; and see the judgment of Lord Gifford in Lemcke v. Vaughan, 1 Bingham, 481. And if a ship violate the convoy act by sailing with a larger complement of guns and men than the licence authorizes, but without the knowledge of the assured, such licence will not be repudiated, nor the policy made void on that ground. 1 Campbell, 530, Edwards v. Footner. 12 East, 223, Jansen; see 12 East, 311, Barlow v. M'Intosh; 16 East, 3, Busk v. Bell. 5 Taunton, 720, Robinson v. Morris. i East, 475, Vandyck v. Whitmore. 4 Barnewall & Alderson, 184, ten. 12 East, 302, n. Gordon v. Vaughan. If there be a condition annexed, that must be fulfilled to enable the party to avail himself of the grant, as where a bond for the exportation of goods was required, such security not being given, the exportation became illegal. So where there was a licence for the exportation of gunpowder, but on condition that the merchant exporter should give a certain security; the party asking for the licence gave the security and the policy was vacated, for he was not the merchant exporter. And a colourable performance of the condition will not be sufficient, for that will be held a fraud upon the licence. This document being duly obtained, may operate to protect an insurance upon an enemy's ship; and upon his goods, so as to enable 3 Taunton, 554, him to enforce his contract. in this country; and, of course, if a place be occupied by a military force at war with Great Britain, and His Majesty permit traffic to 3 Maule & Sel- be carried on between the inhabitants of that place and England, a policy effected by them will protect goods 1 Maule & Sel- shipped here on their account. 8 East, 273. Kensington v. Inglis. Morgan v. Oswald; 4 Taunton, 4, Feise v. Bell; wyn, 337, Hull man . Whit more; and see wyn, 567. Hagedom v. Reid ; 5 Maule & Selwyn, 25, Rucker v. Ansley. 1 Maule & Selwyn, 450, Hagedon v. Bell; see also 2 Maule & Selwyn, 100, Hagedorn v. Bazett; 1 Maule & Selwyn, 217, Robinson v. Touray; 4 Taunton, 792 Pieschell v. Allnutt. 4 Taunton, 233, Taylor; and see 4 Taunton, 178, Wainhouse v. shall, 252, Dar. And a merchant, who had two neutral partners, trading under a licence granted to the broker of the firm, was permitted to sue the underwriters on his policy, although the neutrals became enemies before the bringing of the the action. However, the licence must not be strained beyond its Cowie; 2 Mar. specific object; and thus, where a ship was allowed to by v. Newton; go without convoy to a certain port, here was no licence 15 East, 517, that she should run the residue of the voyage without Ingham v. Ag- either licence or convoy. So, if there be an alteration of the voyage not consistent with the terms of the licence, it will be unprofitable. But if the ship be de new. 1 Barnewall & Alderson, 142, Everth Tanno. Schroder v. Vaux; 5 Taunton, 329, Everth v. Smith; 3 4 Camp. 83, Groning v.Crockett. Taunton, 478, Walker; Id. 483, Leevin v. Freeland v. Cormac. tained through some unavoidable accident, the licence 15 East, 52, shall not be exhausted so as to prevent the legality of the adventure, although the actual time may have expired; it is upon the principle of inevitable necessity. But, to prove that the master of the vessel has used due diligence some testimony must be brought forward, and the particular excuse relied upon by the person desirous of recovering on the policy must be shown. As where a ship's cargo, being unladen in the course of the voyage, was destroyed by fire, and another cargo substituted, the old licence was held to protect it, though the parties had actually obtained unnecessarily a new one, and the Siffken v. Allobjection made at the trial against their recovering was, that the clearance of the substituted cargo had not been indorsed on the new licence, and which could not be, as it was not with the ship. 4 Taunton, 717, Siff kin v. Glo ver; 1 Maule & Selwyn, 39, nutt. Marshall; same case again tried, 7 Taunton, 468; same case, 2 Marshall, 92; Tulloch v. Boyd; 7 Taunton, 472; 1 Moore, 174, The difference between a licence for exportation and one for importation may be referred to the same princi- 6 Taunton, 390, ple, since in the one case there is time to apply, in gene- Williams v. ral, for a new licence, in the latter, it is not so. And it seems, that an accident will not alter the case if a new licence can be procured in due time, nor is clearing at the Custom House in London an exportation, it appearing that ships are not considered as having exported till after passing Gravesend. The exportation, however, same case. of the excess is alone illegal, so that where more gunpowder was put into the ship than the licence warranted, the insurances, it was held, might be supported to the extent of the legalized quantity. If there be no licence the policy is avoided in toto. We have seen that these licences may not be assigned and a licence to the plaintiff, who had a general bill of lading signed to him, while particular bills where executed in favour of other persons, was held not to protect the consignment; but if the plain 2 6 Taunton, 498, Keirv. Andrade; same case, Marshall, 196; 11 East, 502, Parkin v. Dick. 2 Taunton, 248, tiff had shown a special property in the goods, it would Feise v. Waters. have been otherwise. To enumerate all the cases upon 6 Term Rep. Bristow v. licences would be a long, and probably an unprofitable task, because these instruments are construed in general according to their own respective terms, and as they vary with the changes of the times. Without such licence, however, the insurance of an enemy's property is decidedly illegal; and notwithstanding the various opinions entertained upon the expediency of the decisions, the Court of King's Bench have twice held that doctrine after considerable argument. And it does not alter the case that the ship insured belonged to persons in friendship with Great Britain at the time of the 3 Bosanquet & Puller,191, Fur- policy, if hostilities have broken out afterwards, and tado v. Rodgers. the vessel be made a prize to British capture. For, as Lord Ellenborough said, a proviso to this effect shall in all cases be considered as engrafted : Provided that "this insurance shall not extend to cover any loss happening during the existence of hostilities between the respective countries of the assured and assurer." A policy on a foreign ship expressly excepting British Mesurier; see captures is illegal, but there is perhaps a difference where it is made to cover a British risk. But Lord Ellen3 Bosanquet & borough has holden, that a neutral, resident at an enemy's port, may have an insurance effected upon his goods, for possibly he might have been entrapped or confined. And, the adventure not being of a hostile description, a neutral ship may carry the property of an enemy from its own country to that of the enemy, and such property may thus become the subject of insurance here. 4 East, 417, in Brandon v. Curling, which is to the same effect. Id. 407, Gamba v. Le Mesurier. 4 East, 396, Kellner v. Le Park, p. 375; 7 East, 451; Puller, 302; 5 Espinasse, 184, Visger v. Prescott; Park, p. 130. 1 Campb. 75, Blakes. See upon this subject of trading with an enemy Marshall, p. 32-42. 2 Campb. 163, Boulton v. Dobree. A licence to an alien to import does not authorize him to remain here, or sue on the policy. |
