Church v. Hubbart
Citation | 2 Cranch 187,6 U.S. 187,2 L.Ed. 249 |
Parties | CHURCH v. HUBBART |
Decision Date | 01 February 1804 |
Court | United States Supreme Court |
ERROR to the circuit court of the district of Massachusetts.
In the circuit court of Massachusetts, John Barker Church, Jun. instituted an action against the defendant on two policies of insurance, whereby he had caused to be insured twenty thousand dollars upon the cargo of the brigantine Aurora, Shaler, master, at and from New York, to one or two Portuguese ports on the coast of Brazil, and at and from thence back to New York. At the foot of one of the policies was the following memorandum: 'the insurers are not to be liable for seizure by the Portuguese for illicit trade.' In the body of the other policy was inserted the following:
The Aurora cleared out for the cape of Good Hope, the plaintiff being on board as supercargo. She proceeded to Rio Janeiro, where she remained some days; and under a permit some of the cargo was sold; and afterwards sailed for Para on the coast of Brazil, and in company with another vessel came to anchor about four or five leagues from the land. The destination of the vessel after she left Rio Janeiro was by order of the plaintiff kept secret; and it was said by the master at the time, that the anchoring off the river Para was for wood and water, which were actually wanted.
The plaintiff went on shore in a boat, asserting that he left the Aurora for the purpose of procuring a pilot, to take the vessel up for wood and water and to sell the cargo if permitted. Mr. Church was arrested when on shore, and imprisoned; and the Aurora and the vessel in her company were taken possession of by a body of armed men, and carried into Para.
It was in evidence, that the trade to Para was prohibited, although by bribery of the Portuguese officers, cargoes were frequently sold there, the vessels which brought them alleging on arricval a pretence of want of repairs, want of water, or something of that kind.
The vessel and cargo were condemned by the governor of the capital of Para, as having been seized for illicit trade. The defense against the claims of the plaintiff on both policies was, that the loss occurred from a prohibited or illicit trade; for which the defendant, as an insurer, was not liable, according to the exception in both policies.
To prove that the trade to Para was illicit, the defendant offered a copy of a law of Portugal, passed the 18th of March 1605, entitled 'a law by which foreign vessels are prohibited from entering the ports of India, Brazil, Guiana, and Islands, and other provinces of Portugal.' The terms of this law expressly prohibit the trade, and subject the vessel and cargo, violating its provisions, to seizure and forfeiture, and the persons engaged in the same to the punishment of death.
[Page 190 intentionally omitted] The law was certified in the following term:
'In testimony whereof, I have hereunto set my hand and affixed my seal of office, at Lisbon, this 12th day of April 1803.
'WILLIAM JARVIS.'
Another law was produced, made on the 8th of February 1711, which provides for the punishment of the officers of the government who shall suffer the law of 1605 to be violated, and for the detection and punishment of offenders. This law was certified in the same manner.
To establish the defense that the Aurora and cargo were seized and condemned for illicit and prohibited trade, the defendant offered in evidence 'the sentence of the governor of the capital of Para, on the brig Aurora.'
'On the 27th of June 1801, the deeds were given to me by his excellency the governor and captain general of state, D. Francisco de Souza
Coutinho, with his sentence ut supra, of which I made this term; and I, Joseph Damazo Alvares Bandiera, wrote and finished the same.
'It is hereby determined by the court, &c. that in the certainty of it being affected and unprecedented that the brig Aurora captain Nathaniel Shaler putting into this port as in the decision folio 43; as it is justly declared and adopted for the same incontestable causes there specified, that in consequence thereof, and of the respective laws thereto applying, she ought to be condemned, they concurring to convince that it was the project of the said captain (if he had no other reason beside these, of which there is suspicion) to look for a market for the merchandise which were found, not only as it appears by the letters hereunto annexed, but in the society and conversation in which he sailed with the schooner Four Brothers, which captain is convicted, by very clear proofs, of such an intention, and the same specious pretext with which he pretends to colour the cause for putting into this port, manifesting in this manner that he was not ignorant of the laws of the state concerning coming in and doing business therein.
'Therefore they declare him to have incurred the transgression of the order folio 1 to 107, and decree of the 28th of March 1605, and they order that after proceeding in the sequester on the vessel and cargo, to send the captain as prisoner, with the necessary information by the competent secretary, that his royal highness may be pleased to determine about him, as may be his royal pleasure.
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