[1-Douglas-251] PLANCHE AND ANOTHER, against FLETCHER. Monday, 15th Nov. 1779. If goods are insured on board a ship from London to Nantz, with liberty to call at Ostend, and she is cleared only for Ostend, but sails directly for Nantz, that being the known course of the trade in order to save certain duties both in England and France, there is no fraud on the underwriter so far as to vacate the policy. — If an insurance is made before the commencement of hostilities, but when every body expects a war immediately, the insured is not bound to give the underwriter notice, though the ship do not sail till after the war takes place, and the underwriter is liable in case of capture. — The Courts in this country do not take notice of foreign revenue laws.

The plaintiffs, Planche and Jacquery, merchants in London, insured goods, "on board the Swedish ship called the 'Maria Magdalena, lost or not lost, at and from London and Ramsgate to Nantz, with liberty to call at Ostend, being a general ship in the port of London for Nantz." There was a declaration in the policy, that the insurance was made on account of "certain, persons carrying on trade under the name and firm of Vallée & du Plessis, Monsieur Lusseau le Jeune, Guillaume Albert, et Poitier de la Gueule." The defendant underwrote the policy for £300, at three guineas per cent. The ship's clearances from the Custom-House in London, and her other papers, were all made out as for Ostend only, but the ship and goods were intended to go directly from London to Nantz, without going to Ostend. Bills of lading, in the French language, dated the 18th of July 1778, were signed by the captain in London, but purporting to be made at Ostend, and that the goods were shipped there to be delivered at Nantz. The policy was subscribed by the defendant on the 7th of July, and the lading was taken in between the 24th of July and the 17th of August. The proclamation for making reprisals on French ships, &c. bore date the 29th, and appeared in the Gazette on the 31st of July. Two underwriters had signed the policy after the proclamation, at the same premium of three guineas; one on the 31st of July, and the other on the 7th of August. The ship sailed on the 24th of August, and was taken by a King's cutter on her way to Nantz. After her departure from Gravesend, the captain threw overboard all the papers he had received from the Custom-House at London. They had been obliterated by the Custom-House officers at Gravesend, and were no longer of any use. The ship was released by the Admiralty, but the goods were condemned. The plaintiffs had no connection or share in the ship. Such were the material facts of this case, as they were stated this day, by Lord Mansfield in his report, upon a rule to shew cause why there should not be a new trial. The cause had been tried at the last sittings at Guildhall, and a verdict found for the plaintiffs. The grounds of the application for a new trial were two. 1. That [1-Douglas-252] there was a fraud on the underwriters, the ship having been cleared out for Ostend, and yet never having been designed for that place. 2. That, as hostilities were declared after the policy was signed, and before the ship sailed, the defendant ought to have had notice, that he might have exercised his discretion whether he would chuse for a peace premium to run the risk of capture. Besides the facts above-mentioned, his Lordship stated, that the plaintiffs had produced evidence to shew, that all ships going with goods of British manufacture to France clear out for Ostend without meaning to go thither, and that this is universally understood by persons concerned in that branch of commerce. The reason suggested for clearing out for Ostend, [1 Douglas 253, 99 ER p165] and afterwards making bills of lading as from that place, were, that the lighthouse duties are saved, which are payable when the voyage is known to be directly down the Channel, and that the French duties are less upon goods from Ostend, than from England.

The Solicitor General, and Bower, for the plaintiffs—Dunning, and Davenport, for the defendant.

For the defendant, the fabrication of false and colourable papers, and the suppression of the true destination of the ship, were urged as circumstances of fraud, tending to mislead the underwriter, as to the voyage intended to be insured, and the nature of the risk. But the second objection was chiefly relied upon, and it was said, that it was the duty of the insured to have given the underwriter information, that the ship continued in the river after the proclamation. It was also contended, that in time of war, the exportation of enemy's property, even in neutral bottoms, was illegal, and that an insurance upon such goods was void.

In answer to this, it was said, in the first place, that there was no compulsion, by the terms of the insurance, for the ship to go to Ostend. If her fixed destination as understood by the underwriters, had been from England to Ostend, and from Ostend to Nantz, the policy would have been otherwise worded; and the course of the trade being notorious, the defendant could not be deceived or misled by her being cleared out for Ostend. As to the second objection, the rupture with France was impending and expected by all the world at the time when the policy was signed. The proclamation did not contain an interdiction of commerce between the two nations, the packets and mails passed regularly between Dover and Calais long afterwards. [1-Douglas-253] There was nothing illegal in exporting or insuring French property in neutral bottoms after the proclamation, and the premium on such goods in neutral ships did not rise for a long time after the commencement of hostilities. If the transaction had not been strictly legal, there were cases where the Court had refused to grant a new trial on that ground when the objection was against the justice and conscience of the case (a).

Lord Mansfield. — This verdict is impeached upon two grounds. 1. It is said, there was a fraud on the underwriters in clearing out the ship for Ostend, when she was never intended to go thither. But I think there was no fraud on them, — perhaps not on any body. What had been practised in this case was proved to be the constant course of the trade, and notoriously so to every body. The reason for clearing for Ostend, and signing bills of lading as from thence, did not fully appear. But it was guessed at. The Fermiers Generaux have the management of the taxes in France. As we have laid a large duty on French goods, the French may have done the same on ours, and it may be the interest of the farmers to connive at the importation of English commodities, and take Ostend duties, rather that stop the trade, by exacting a tax which amounts to a prohibition. But, at any rate, this was no fraud in this country. One nation does not take notice of the revenue laws of another [F.1] []. With regard to the evasion of the light-house duties, the ship was not liable to confiscation on that account [F 2]. The second objection is, that the policy was made before, and the ship sailed after, the proclamation for reprisals. But every man in England and France, on the 17th of July, expected the immediate commencement of a war. I will not say it was actually commenced but the ambassadors of both countries were recalled; the " Pallas " and " Licorne" were taken; the fleets at sea and, as it appeared afterwards, waiting for each other to fight. It does not appear that the goods were French property [1]; an Englishman might be sending his goods to [1 Douglas 254, 99 ER p166] France in a neutral ship [F3]. But it is indifferent whether they were English or French. The risk insured extends to all captures [2] [F 4], and as other underwriters signed at the same premium, after the proclamation, it appears that the war risk was in view when the de-[1-Douglas-254]fendant signed. Shall he avail himself of an event which encreases the risk, but which he had in contemplation when he underwrote the policy? I am of opinion that there should not be a new trial.

The rule discharged [† 72].