Suckley v. Delafield , 2 Cai. Cas. 221 ( 1804 )

Kent, Ch. J.

We are oi' opinion tbe representation of sailing in ballast, was merely stating tbe vessel would not be exposed to tbe sea perils attending a loaded ship. It was made in a time of profound peace, and, in tbe present instance, was substantially performed. We have no doubt on tbe conduct of tbe master. It was certainly barratry, and tbe plaintiff must have judgment.^(a)

New trial denied.

(a) Where contraband of war and lawful goods are shipped in the same bottom, with the knowledge of the assurer and assured, the warranty against illicit trade, &c., in a policy on the lawful goods, will apply only to the goods insured. Brown v. Show, 1 Caines’ Rep. 489. To constitute a breach of the warranty in this clause, a condemnation on pretence of illicit trade, &c., is not enough: there must, it would seem, be a trading in fact, (Johnston v. Weir & Ludlow, 1 Caines’ Ca. in Er. xxix. S. C., confirmed by 2 Johns. Ca. 481, giving the sentence of the court of admiralty at full length, the decision in error verbatim as in Caines’,) and that followed by a seizure; (Graham v. Penn. Ins. Co., 1 Cond. Mar. 346, a. (a) therefore a loss by seizure only, in a port of necessity, after being refused entry at that of destination, is not a loss within the warranty, (Suydam & Wyckoff v. Mar. Ins. Co., 1 Johns. Rep. 181,) nor a'capture under the Berlin decree for touching at a port in England. Mumford v. Phœnix Ins. Co., 7 Johns. Rep. 449. But from a loss by any trading actually illicit, though innocently carried on, the underwriter is exonerated. As where a vessel commenced her loading under a permission by proclamation to take in a cargo not allowed to be exported or received otherwise, but was taken and condemned in consequence of continuing to lade and sailing after promulgation of an order revoking the license, the underwriter was held to be discharged, notwithstanding the lading and sailing were under a mistaken opinion of the commander-in-chief at the port of departure, that the trade was lawful. Tucker v. Juhel, 1 Johns. Rep. 20. Iti a policy on commissions on lawful goods, containing the above warranty, it will apply only to those lawful goods upon which the commissions are to arise, though the insurer know not of contraband of war being on board, and the assured be assignee of the contraband articles. De Peyster & Charlton v. Gardner, 1 Gaines’ Rep. 492.