Livingston and Gilchrist v. the Maryland Insurance Company

• Decision Date: 01 February 1810
• Citation: 6 Cranch 274,3 L.Ed. 222,10 U.S. 274
• Parties: LIVINGSTON AND GILCHRIST v. THE MARYLAND INSURANCE COMPANY
• Court: U.S. Supreme Court

10 U.S. 274

6 Cranch 274

3 L.Ed. 222

LIVINGSTON AND GILCHRIST v. THE MARYLAND INSURANCE COMPANY.

February Term, 1810

ERROR to the circuit court for the district of Maryland, in an action of covenant upon a policy (of insurance against capture only) upon goods laden on board the ship Herkimer from Guyaquil, or her last port of discharge in South America, to New-York; the goods were warranted to be American property, 'proof of which to be required in the United States only.' The ship and cargo were captured by a British ship of war, and condemned at Halifax as prize.

The defence set up by the underwriters was,

1. That one Baruro, a Spanish subject, was interested in the cargo, and that Baruro being a subject of one of the belligerents, the warranty of neutrality was forfeited.

2. That certain Spanish papers were found on board stating the cargo to be the property of Baruro, and although Baruro might not be interested in the cargo, yet these papers, not being necessary, according to the usual course of the trade, were the cause of the condemnation, and as this cause proceeded from the act of the insured, the underwriters were not liable.

3. That although the interest of the plaintiffs Livingston & Gilchrist, was neutral, yet the concealment of the interest of Baruro vitiated the policy.

4. That the abandonment was not made in due time.

To these objections the plaintiffs answered,

1. That Baruro was not part owner of the goods; he had only a contingent interest in the profits of the voyage. That the subject insured was only the interest

of the plaintiffs, which was strictly neutral property.

2. That the Spanish papers were necessary to carry on the voyage insured, according to the nature and course of the trade.

3. That the interest of Baruro was not such as they were bound to disclose.

Upon the trial of the issue of non infregit conventionem, the jury found a special verdict; and a bill of exceptions was taken by the plaintiffs in error to the instruction of the court to the jury, that parol evidence was not competent to prove, 'that according to the uniform and long standing laws of Spain, relative to the trade of her colonies in America, and especially of Peru, no goods could, at and about the time of the making the policy in the declaration mentioned, be imported into, or exported from, the colony of Peru, from, or to any other than a Spanish port in Europe, or in any other than a Spanish bottom, without a special license from the King of Spain for that purpose, and that such licenses, at and about the said time, were never granted, with respect to the said colony of Peru, to any but Spanish subjects; and that, according to the constant course and usage of the trade, to and from that colony, under such licenses, it was usual and necessary for the property to appear, in the said colony, and at its departure therefrom, as the property of a Spanish subject, and of the person holding the license, to be accompanied by such Spanish papers as were necessary to give it that appearance, and to be cleared out as such from the port of departure in Peru; such licenses, not being avowedly transferable; although by observing the abovementioned formalities and precautions, American property, at and about the said time, might be, and sometimes was, imported into, and exported from, the said colony by American citizens, by virtue, and under the protection, of such licenses.'

The order for insurance, which was supposed to

amount to a representation, that the whole cargo was neutral property, was contained in a letter from the plaintiff Gilchrist to Webster & Co. at Baltimore, in which he says, 'on the recommendation of Messrs. Church & Demmill, I take the liberty of requesting you to effect insurance in your city on the cargo of the ship Herkimer, Church, master, from Guyaquil, or her last port of departure in South America, to New-York, against loss by capture only, warranted American property, and free from all loss on account of seizure, for illicit or prohibited trade. The owners are already insured against the dangers of the seas, and all other risks except that of capture. You will please to insure to the amount of fifty thousand dollars in valued policies. You have already had a description of the ship from Messrs. Church & Demmill, the agents of Mr. Jackson, who is the owner, and which I presume is correct. By a letter received from Mr. James Baxter, the supercargo, dated at Lima, the 23d of September, 1805...