laws of his country. The English writers on insurance have not concurred entirely in opinion on the question; for while Miller, in his essay on The Elements of Insurance, approves of the English rule, and Mr. Justice Park admits it without any complaint, there are other writers, equally intelligent, who most pointedly condemn the doctrine." In this country, we have followed the English rule, as declared by Lord Mansfield, to the full extent; and the underwriter is liable for losses in consequence of violations of the trade laws of foreign states, provided he was apprized of the intention on the part of the insured, to violate such laws, either by the terms of the policy, or the standing regulations of the place to which the vessel is insured, or the known usages of the trade. It is well understood and settled, that the underwriter is not liable for any loss arising from foreign illicit trade, unless he underwrote with full knowledge that such a trade was the object of the voyage. All the authorities, foreign and domestic, recognise this doctrine. But if the trade be known to be illicit, and the underwriter makes no exception of the risk of illicit trade, it will be presumed he intended to assume it. The implication would be very fair and just, and would supply the place of more direct proof. It is certainly matter of surprise and regret, that in such countries as France, England, and the United States, distinguished for a correct and enlightened administration of justice, smuggling voyages, made on purpose to elude the laws, and seduce the subjects of foreign states, should be countenanced, a Miller on Insurance, 23. Marshall on Insurance, vol. i. 60. 82-84. Park on Insurance, 313. Condy's b Valin, tom. ii. 127. Planche v. Fletcher, Doug. Rep. 251. Roccus, de Ass. not. 21. Gardiner v. Smith, 1 Johns. Cas. 141. Richardson v. Maine Insurance Company, 6 Mass. Rep. 102. Parker v. Jones, 13 ibid. 173. Andrews . Essex Fire and Marine Insurance Company, 3 Mason's Rep. 18. 20. Archibald v. Mer. Insurance Company, 3 Pick. Rep. 70. and even encouraged, by the courts of justice. The principle does no credit to the commercial jurisprudence of the age." 2. Of contraband of war. The insurance by a neutral, of goods usually denominated contraband of war, is a valid contract, for it is not deemed unlawful for a neutral to be engaged in a contraband trade. It is a commercial adventure which no neutral nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation. But, on the other hand, all articles contraband of war are subject to seizure in transitu, by the belligerent cruisers, and so far it is a case of imperfect right. Mr. Phillips, in his Treatise of the Law of Insurance, intimates, that the trading in articles contraband of war is illegal by the law of nations, which forms part of the municipal law of every state; and that the property cannot, therefore, be the lawful subject of insurance, even in a neutral state." But though it may be difficult to answer this reasoning, it is certain, that the established doctrine is not so rigorous. Vattel admits, that it is not an act in itself unlawful or hostile, for a neutral to carry on a contraband trade; and if the neutral right to carry, and the belligerent right to seize and confiscate, clash with, and reciprocally injure each other, it is a collision of rights which happens every day in war, and flows from the effect of an inevi a In the case of La Jeune Eugenie, 2 Mason's Rep. 459, 460, a case that pleads the cause of humanity with admirable eloquence, the rule supporting smuggling voyages is admitted, but pretty plainly condemned. b See vol. i. and the authorities there cited; and in addition thereto, see Seton & Co. v. Low, 1 Johns. Cas. 1. Barker v. Blakes, 9 East's Rep. 283. Pond v. Smith, 4 Conn. Rep. 297. Jubel v. Rhinelander, 2 Johns. Cas. 120, and affirmed on error, ibid. 487. c Phillips on Insurance, p. 39. d B. 3, c. 7, sec. 111. table necessity. The Chief Justice of Massachusetts, in Richardson v. Maine Insurance Company, examined this subject with very accurate discrimination, and he considered, that illicit voyages might be ranked in several classes: (1.) When the sovereign of the country to which the ship belonged, interdicted trade with a foreign country or port; and in that case, the voyage, for the purpose of trade, would be illicit, and all insurances thereon void. (2.) Where the trade in question is prohibited by the trade laws of a foreign state; and in that case, the voyage, in such a trade, may be the subject of insurance in any state in which the trade is not prohibited, for the municipal laws of one jurisdiction have no force in another. (3.) When neutrals transport to belligerants, goods contraband of war. The law of nations does not go to the extent of rendering the neutral shipper of goods contraband of war, an offender against his own sovereign. While the neutral is engaged in such a trade, he is withdrawn from the protection of his sovereign, and his goods are liable to seizure and condemnation by the powers at war. To this penalty the neutral must submit, for the capture was lawful. The neutral may lawfully transport contraband goods, subject to the qualification of being rightfully liable to seizure by a belligerent power; but he is never punished by his own sovereign for his contraband shipments. In like manner, the neutral may lawfully carry enemy's property, and the belligerent may lawfully interrupt him and seize it. An insurance, then, by neutrals, in a neutral country, is valid, whether it relates to an interloping trade in a foreign port, illicit lege loci, or to a trade in transporting contraband goods, which is illicit jure belli. But to render the insurance in either case valid, the nature of the trade, and of the goods, should be disclosed to him, or there should be just ground, a 6 Mass. Rep. 102. from the circumstances of the trade, or otherwise, to presume that he was duly informed of the facts." 3. Of seamen's wages. The commercial ordinances have generally prohibited the insurance of seamen's wages, and the expediency of the prohibition arises from the consideration, that if the title to wages did not depend upon the earning of freight by the performance of the voyage, seamen would want one great stimulus to exertion in times of difficulty and disaster. Though there be no statute ordinance on the subject in the English law, yet it is every where assumed, as a settled principle in the marine law of England, that seamen's wages are not insurable. But the goods that seamen purchase abroad with their wages, do not fall within the reason, nor do wages already earned and due; and yet if a seaman, at an intermediate port, by a refusal to proceed, coerces the master to have his wages already earned insured, such a policy has been held void in the French courts. 4. Of freight, profits, and commissions. In France and Spain, freight not earned cannot be insured, and for the same reason, that seamen's wages are not insurable. Several of the commercial tribunals wished, however, to adopt the practice of the English, and give a greater extension to the liberty of insurance. To this it was answered, that risk was of the essence of the contract, and that there a Parsons, Ch. J., 6 Mass. Rep. 114, 115. In New-York, the underwriter is presumed to assume the risk of contraband of war, without a previous disclosure of the nature of the cargo; and on the ground of that presumption the contraband cargo need not be disclosed. Seton v. Low, 1 Johns. Cas. 1. Juhel v. Rhinelander, 2 ibid. 120. 487. b 1 Magens on Insurance, 18. Lord Mansfield, in 3 Burr. Rep. 1912. Webster v. De Tastet, 7 Term Rep. 157. Lord Stowell, in 1 Hagg. Adm. Rep. 239. c Emerigon, tom. i. 236. could be no real loss of that which is a nonentity, and had no certain existence, as future contingent freight and profits." By leaving the freight to be earned uncovered, the master has stronger inducements to be vigilant in the preservation of the ship and cargo. This is the reason assigned by Cleirac ; but Emerigon says, the true ground of the prohibition is, the uncertainty of the existence of any future freight. In England, and in the United States, future, or expected and contingent, and even dead freight is held to be an insurable interest. It is sufficient that the insured has an interest in the subject matter from which the freight is to arise. It is necessary, however, that the ship should have actually begun to earn freight, in order to entitle the insurer to recover, for, until then, the risk on the freight does not commence. An inchoate right to freight is an insurable interest. The risk generally begins from the time the goods, or part of them, are put on board; and if the ship has been let to freight under a charty party of affreightment, the right to freight commences, and is at risk, so soon as the ship breaks ground; and if the charterer omits to put on board the expected cargo, and the ship performs the voyage in ballast, the right to freight is perfect. But when the freight arises from the transportation of the goods, it commences when the goods are put on board, and the policy attaches to the extent of the goods on board, or ready to be shipped. a Boulay Paty, tom. iii. 482, 483. b Ord. de la Mar. du Fret, art. 15. Cleirac, sur le Guidon, ch. 15, art. 1. boa, ch. 22. Code de Commerce, art. 347. 1 Emerig. 224. Ord. of Bil c Tonge v. Watts, Str. Rep. 1251. Thompson v. Taylor, 6 Term Rep. 478. Forbes v. Aspinall, 13 East's Rep. 323. Davidson v. Willasey, 1 Maule & Selw. 313. Riley v. Hartford Insurance Company, 2 Conn. Rep. 368. Livingston v. Columbian Insurance Company, 3 Johns. Rep. 49. Davy v. Hallett, 3 Caines' Rep. 16. Mr. Benecke, in his Treatise on the Principles of Indemnity, p. 57, says, that the practice of insuring ship and freight separately, is attended |