Kohn v. New-Orleans Insurance

Bullard, J.; delivered' the opinion of the court. The only question which this case presents, is whether there has been any breach of warranty on the part of the assured. 1 he warranty was “free from any charge, damage or loss, which may arise in consequence of a seizure or detention, for or on account of any illicit or prohibited trade,” etc. rru . . , . _ . . I here is certainly no evidence of any seizure or detention; nor is the evidence satisfactory to us, that the shipment of the bullion at Tuspan, was in violation of any law of Mexico, t . . , . ■ . . it appears that the exportation of bullion is sometimes permitted; and in the present case, as the Atalanta left port ten days after receiving her cargo on board, we are to J ° 3 presume a regular clearance. It is not enough, in our opinion, to prove that there exists a general law, prohibiting such exportation. The underwriters, who are supposed to \ . 7 ri be acquainted with the regulations of the trade, assumed all risks, except that of actual seizure or detention on account of illicit or prohibited trade. It appears that the vessel sustained such damage by the dangers of the sea, on leaving Tuspan, that she was compelled to put into Tampico in distress, when she was totally lost. A part of tbe bullion was saved, and trans-shipped to Mobile, where it arrived in safety, while the balance, which forms the subject of the present controversy, was sunk in , ,, ... ... . , . T shallow water, with a view to its recovery afterwards. It has been'contended that tbe loss ought to fall upon the shippers, and not upon the defendants, because, tbe throwing of the bullion overboard, was a voluntary sacrifice, to which they submitted, in ordér to avoid an imminent peril, against which they were not insured. The record does not furnish . us with any satisfactory evidence of such danger of seizure, on account of being engaged in illicit trade, as would justify tbe application of that principle. On the contrary, it appears to us, that, after the vessel became disabled from pursuing her voyage, in consequence of the accident on leaving Tus-pan, it was the duty of the captain to labor for the safeguard *352 and recovery of the cargo in the interest of the underwriters, at whose risk it was, under the policy. Nothing shows that the throwing overboard of the silver is imputable to the owners, much less that it was their fault; it was not after-wards recovered. The charge of the judge, so far as we can understand it, from a very imperfect bill of exceptions in the record, appears to us correct, ,and we are not authorized by the evidence to disturb the verdict. It is, therefore, ordered, adjudged and decreed, that the District Court be affirmed, with costs.