
    Albigence Hayward versus Martin Blake.
    The having on board a ship bound to a neutral port a British license is not sufficient to avoid a policy of insurance on the voyage.
    This was an action upon a policy of insurance, made on the 22d of December, 1813, and subscribed by the defendant for $ 500. The policy purported to have been effected by Caleb Hayward, “ for whom it may concern,” upon the cargo of the Spanish ship Rodrigo, from Boston to Havana; and it was averred in the declaration that the plaintiff alone was interested and concerned in the policy.
    On the trial, before Jackson, J., at the last November term in this county, it appeared that the defendant, as agent for the owners of the said ship, chartered her to the plaintiff for the voyage above mentioned. By the terms of the charter-party, the defendant was to victual and man the ship, and to be paid a gross sum at the completion of the voyage. After the charter-party was made, the defendant agreed to take, on his own account, one third of the plaintiff’s interest in the charter-party and in the projected voyage, and to furnish accordingly one third of the cargo. The cargo was procured and laden on the account and risk of the two parties, [*177] in the proportions aforesaid ; and the defendant * alone, in pursuance of the charter-party and as representing the Spanish owners, appointed the master and officers, and procured the crew of the vessel.
    It was thought expedient by the parties that the cargo should appear as neutral property in the voyage ; and they accordingly caused it to be shipped in the name of a certain Spaniard, who was then in Boston, and agreed to let it appear as his property, and gave to them some writing or obligation by which they might receive and hold it on its arrival at Havana.
    
    The defendant put on board the ship, on her sailing from Boston, among other documents, a British license, authorizing the ship to proceed to Bermudas. But it did not appear that this was among the ship’s papers at the time she was captured.
    The plaintiff sailed in the vessel; and, a few- days after his departure, the said Caleb Hayward being about to procure insurance for him, the defendant told the said Caleb that he had, by some accident, got a larger sum insured on his interest in the voyage than he had intended ; and, as he could not conveniently alter his policy, he wished, by way of set-off or balance for the excess, to become an insurer for the plaintiff, and he accordingly subscribed the policy in question for the said sum of $ 500.
    
      The said ship, on her passage, about twenty days after her leaving Boston, was taken as a prize by a British cruiser, and carried to New Providence, where she was libelled. The plaintiff was on board the ship, and was carried to New Providence in her. It did not appear whether the vessel and cargo were condemned ; the only witness produced having left New Providence before the time assigned for the trial. He testified, that he supposed that copies of the papers and documents concerning the ship might have been procured at New Providence; but none were produced at the trial. The loss was averred to be by the said capture. On receiving information of the said loss, the said Caleb * Hay- [* 178] ward, who had a power of attorney from the plaintiff, offered to abandon the property insured to the insurer.
    Upon these facts, none of which were disputed, the judge instructed the jury that the plaintiff was entitled to recover as for a total loss ; and they found a verdict accordingly. The defendant moved for a new trial, on account of the said opinion and direction.
    
      Savage, for the plaintiff.
    
      Selfridge, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court.

We can see no reasonable ground to dispute the legality of this verdict. As to the objection, that the log-book and other ordinary documents were not produced on the trial ; that was a matter of evidence for the consideration of the jury. If the absence of these documents was not properly accounted for, the defendant had the advantage of this at the trial; if properly accounted for, it cannot be pretended that they were essential towards maintaining the action. Besides, these documents must be presumed to be in the possession of the master, if delivered up by the captors ; and the case finds, that the defendant appointed the master, and that the vessel sailed under his management.

It has been also objected, that there was no legal proof of interest in the plaintiff; but there is nothing in the report of the case to justify this objection.

The main point of the defence, however, is, that a British license was on board the ship at the time of her sailing, which was intended to protect her against capture by the British, with whom this government was then at war ; and it is said, that the having or using such licenses being at that time unlawful, according to the statute of the United States, passed July 6th, 1813 , the contract of insurance was, for that cause, void between the parties.

Considering the agency which the defendant had in procuring that license, and putting it on board the ship, it is a matter of some surprise, that he should attempt to make it a ground of de[*179] fence against his express contract. It is left * doubtful in the report, whether the plaintiff knew that the license was on board.

It is certain that it was not used for any' unlawful purpose. The ship sailed as a neutral vessel, and was actually bound to a Spanish port. The license would have protected her only to a British port, or some neutral port which the British had an interest in furnishing with supplies. We cannot think that a paper of this sort, which, if used at all, was to be used for the purpose of deceiving the enemy and preventing a capture, can fairly come within the reason of the act of Congress.

But, if it did, it could have no effect upon this policy of insurance. Insurances upon illegal voyages are without doubt void ; but in this case the voyage was lawful, being to a neutral port. The license might be evidence, in case of a seizure or capture by a vessel of way of the United States, that the voyage really intended was unlawful But, in the present case, it not being contended that the voyage was unlawful, there can be no pretence for supposing that an insurance upon it is void, merely because a paper was on board, which might, under other circumstances, have been used as evidence to show that another destination was intended.

The cases, cited by the counsel for the defendant, from Robinson’s Admiralty Reports, 196, The Hoop, Cornelius, and from 8 D. & E. 548, Potts vs. Bell & al., are not applicable to the case at bar. Those, under the circumstances, were severe cases ; but the decision was unavoidable, as they were cases of direct trading with the enemy ; which is, without doubt, in all countries, unlawful, unless by permission of the government. This is a case of an endeavour to trade with a neutral nation, in spite of the enemy. The license, instead of increasing, would, if used, have diminished the risk of capture ; and, even if the parties had incurred a penalty for possessing the paper, still the voyage was left untainted, and the contract of insurance valid.

Judgment according to the verdict. 
      
      
        Stat. U. S. 12 Cong. 1 Ses. c. 129.
     
      
      
        Perkins vs. N. E. Marine Insurance Company, post, 214. — Bulkley vs. Derby Fishing Company, 1 Con. Rep. 571, sed vide the Hiram, 1 Wheat. 140, 8 Cranch, 441.— The Aurora, 8 Cranch, 203.— The Julia, 8 Cranch, 181, 1 Gal. 594,—Patton vs. Nicholson, 3 Wheat. 204. — Craig vs. United States Insurance Company, 1 Peters, C. C. R. 410 — The Aurora, 4 Hall Law Journ. 473 — The Ariadne, 2 Wheat. 143. — The Langdon Cheves, 4 Wheat. 103.— Ogden vs. Barker, 18 Johns. 87. — Coiquhoun vs. New York Fire Insurance Company, 15 Johns. 352.
     