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![handle is hein.slavery/ssactsengr0563 and id is 1 raw text is: 1136
PARKIN V. DICK
2 CAMP. 221.
[221] Tuesday, July 11, 1809.
PARKIN v. DICK.
(Policy from London to a foreign port, on goods as should thereafter be declared,
each package to pay average, the same as if it were separately insured. A
small quantity of naval stores was afterwards mentioned in the specification
of interest, and exported in the vessel with the other goods insured, without
a licence, contrary to a proclamation authorised by 33 Geo. III. c. 2. Held,
that the policy was entirely vitiated, and that the assured could not recover
for that part of the exportation of which was legal.)
[Subsequent proceedings, 11 East, 502.]
This was an action oil a policy of insurance at and from London to the ship's
port or ports of discharge in the Brazils. By a memorandum at the bottom of the
policy, the insurance was declared to be on goods by the Little Jean, as should
thereafter be declared, each package to pay average the same as if it were separately
insured.
In the specification of interest on the back of the policy were the following
articles: 9 anchors, 22 grapnells, 7 cables, 20 coils of cordage.
The ship was captured ol her outward voyage by a squadron of French frigates.
The Attorney-General, for the defendant, contended, that the insurance was
illegal and void. By 33 Geo. III. c. 2, his Majesty was authorised to prohibit the
exportation of all naval stores without a licence ; and by an Order in Council, dated
22d December 1807, such exportation was prohibited for a period comprehending
the voyage in question. Therefore as it could hardly be contended that anchors
and cables were not naval stores, unless the plaintiff could produce the King's licence
for exporting them, he must be nonsuited.
[222] Garrow, contra, insisted, that even supposing the Act of Parliament to
have been violated, however the exporter of these articles might be liable to a
penalty, the policy was not avoided, as the Act contained no clause (such as was
inserted in the Convoy and Slave Trade Acts) to prohibit or annul insurances on
voyages undertaken contrary to its enactments.-At any rate, this could only be
a question of quantum. The articles which came under the denomination of naval
stores formed but a very trifling part of the cargo ; and it was expressly provided by
the policy, that each package should pay average, the same as if it were separately
insured. The insurance, therefore, was clearly good for all but the prohibited
articles. In the late case of Law v. Hod qson (ante, 147), upon the sale of bricks,
Mr. Justice Le Blanc asked if all the bricks were under the statute measure ? thereby
clearly signifying, that for so many as were not the plaintiff might have recovered.
If there were different shippers of goods on board a general ship who protected
their respective interests by several policies, all these policies could not be rendered
void by one of them being upon naval stores. So here it must be taken as if there
were separate policies upon each package ; and, with the exception of a few articles,
the assured were entitled to their stipulated indemnity from the underwriters.
Lord Ellenborough.-Tie objection is fatal. I have [223] got a clause declaring
policies on prohibited voyages, introduced into Acts of Parliament, for the purpose
of warning the public. But it is clearly unnecessary. The illegality of such policies
is a consequence of law. Nor can I separate one part of the subject-matter insured
from the residue. It may be a hard case*if only a small quantity of naval stores
be included in a cargo which is insured ; but the smallest quantity renders the
adventure illegal, and I have no scales to weigh degrees of illegality. This contract
is entire, and.is wholly void.
Plaintiff nonsuited.
In time ensuing term Taddy moved for a rule to shew cause why the nonsuit
should not be set aside ; arguing, that the insurance was valid as to all the goods,
except the naval stores, which constituted but a very snall part of the cargo ; that
the case was like that of a bond conditioned for the performance of sonic covenants
that were legal and some that were illegal, where the obligee may still sue for the
penalty upon the breach of any of the legal covenants; that the legislature, by
special authority, the agent cannot convert the policy into a pledge or security for
a debt due from himself to a third person. Vide Grove v. Dubois, 1 T. R. 112;
Daubqny v. Daval, 5 T. I. 604 ; Mackenzie v. Scott, 6 Bro. P. C. 280.](ViewImageLocal?handle=hein.slavery/ssactsengr0563&div=1&collection=&method=preview&ext=.png&size=3)