Laing against The United Insurance Company. - The Same against The Same. - The Same against The Same, 2 Johns. Cas. 174

Radcliff, J. I think it unnecessary to decide whether tin in blocks, or in any other form, is an

article contraband of war; or to consider the merits of the foreign sentence. If the opinion be correct, that the insured, in every case, undertakes to maintain the truth of his warranty, it is decisive, as between him and the insurer, in the present case. Such a construction is consistent with the terms of the warranty in the present policy. The insurers are declared to be free from any loss which may arise in consequence of a seizure or detention for or on account of any illicit or prohibited trade, or of any trade in articles contraband of war.” The construction of this warranty I consider to be the same, as the just

interpretation of the policy on the face of it, and liable to the same result. There must be a judgment of nonsuit in all the causes. Kent, J. The great point on which these several causes turn, is simply, whether the plaintiff has or has not broken his warranty, that the property should be free from loss or charge arising from seizure on _ account of any trade in articles contraband of war. If he has not, then, the seizure and consequent notice of abandonment, would entitle him to recover for a total loss.

To determine this fact, in respect to the warranty, we are brought to a consideration of the sentence of condemnation. Are we to regard the sentence as conclusive evidence of the allegation, that the tin was an

article contraband of war ? If not, and the merits of the judgment are to be overruled, is tin an

article contraband of war, as between us and Great Britain? Upon the first question my opinion is, that the sentence being direct, and upon the very point of the warranty, is conclusive evidence of a breach of it. The reasons for this opinion have already been given in the case of Vandenheuvel v. The United Insurance Company; and lam accordingly of opinion, that judgment must be for the defendant, upon the terms stated in the case.() Benton, J. was of the same opinion. Lewis, J. was absent. *Lansing, Ch. J.

Three questions are presented for the examination of the court; but the first, whether tin in blocks, or tin in plates, are articles contraband of war, is, in the light in which I consider the subject, and the question arising on the warranty, such as renders a decision on the others unnecessary.

If the decision of the British court of vice-admiralty, in pronouncing these articles contraband of war, is correct, or if they are considered as not contraband, and yet the parties are concluded by that decision, it might impose it on the court to consider what influence the other points raised in the cause ought to have on our final determination.

As the reasons of the condemnation appear, I consider them as proper objects for the examination of this court; and this is strictly conformable to the principles laid down in the cases arising in the British courts, and which, I take it, there is no adjudication of our courts to restrain, except the case of Ludlow v. Dale, (1 Johns.

Cas. 16.) That case was determined on the point, that the sentences of foreign courts were conclusive, after a full argument on the other-points presented in the cause, in which the counsel refrained from laying any great stress on it, their attention being principally directed to the other points in the cause.

It is certain that the British courts have distinguished between cases presenting a right of condemnation, as deducible from the law of nations, and such as, dictated by peculiar views or situations, are arrogated by the belligerent powers to promote their own interest, regardless of the influence that law ought to have on their conduct.

On this ground, they have confined themselves to resisting the effect of local ordinances, detracting from the rights of neutrals; but whether the injury to those rights originated in positive ordinances, or were produced by *graduaily diverging from the line which, consistent with the general maritime law, ought to regulate their conduct, 1 consider as very immaterial, and cannot, certainly, vary the principles by which it is to be tested.

Neutral powers are interested in repelling every attempt to impair their rights, and in protecting the lawful commerce of their citizens; and, as one of the means of resisting aggression and defending that commerce, in withholding their sanction from every unjust attempt to invade it.

I take it, that there is no essential difference between cases of condemnation produced by arbitrary ordinances, and arbitrary and unfounded extensions of principles, without the aid of ordinances; that both ought to be considered as equally open to examination; and that we ought not, nor does justice or general convenience require us, to close the door, so as to exclude such examinations. In the case of Goix v. Low, (1 Johns.

Cas. 341,) I entered into a particular examination of all the cases adduced to prove the eonclusiveness of foreign sentences; and I stated the rules deduced from them, as laid down by Lord Mansfield, as collected from all preceding cases; and my opinion respecting them, as a general result from the whole. Tin, in the different shapes in which it is described in this case, is susceptible of application to a great variety of uses; and, with few exceptions, is applied to purposes which have no connection with military or naval equipments.

The domestic and ordinary purposes to which it is applied, create a consumption of that article, in a much greater and more extensive degree than any warlike purposes.

If its destination might be permitted to mingle in the circumstances justifying the condemnation, and it had been intercepted on its way to a port in which hostile '^preparations in navy yards, or founderies of cannon were carried on, these considerations would in this question, operate against the condemnation ; for it is expressly admitted, that there was no establishment of the latter description in the West Indies, and the case is silent as to the former: it cannot, therefore, be necessary to trace the reasoning on this subject.

If the extension given to the principle respecting naval and military stores, as laid down in this sentence, is correct, it is difficult to determine what modification of wood or metals can exempt them from so comprehensive a construction. It appears to be palpably misapplied; it is an arbitrary and unfounded extension; as such it ought to be disregarded, as affecting the rights of neutrals; and which they are not bound to sanction in their judicial proceedings, as derogatory from those rights.

The policy contains a warranty, that the subject insured, shall be free from any charge, damage, or loss, which may arise in consequence of any seizure or detention, for or on account of any illicit or prohibited trade, or trade in articles contraband of war. This warranty is precisely to the point on which the loss happened. The condemnation was expressly on the ground that the articles condemned were contraband of war.

But the insured had stipulated by their warranty, that all seizures for or on account of any illicit or prohibited trade, should not affect the insurers.() On this point, respecting the warranty, I therefore concur with the general result, deduced by the rest of the court from the case, that the defendants ought to have judgment. Judgment for the defendants.() (

a) See Vandenheuvel v. The United Ins. Co. supra, p. 127, and note (b.) p. 144, and note (

b) p. 168. (

b) See note to Delavigne v. The United Ins. Co. supra, vol. 1, p. 313. (

c) This judgment was afterwards, (1802,) reversed in the Court of Errors. See infra, p. 487.