# Ocean Insurance Company v. Polleys

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United States Supreme Court
38 U.S. 157
Ocean Insurance Company v. Polleys
IN error to the Supreme Judicial Court of the state of Maine.
The original action was assumpsit on a policy of insurance, dated July 17, 1833, upon the schooner called the Mary, and owned by said Polleys, for the term of one year, commencing on the 11th of said July-sum insured $3,000. The schooner during the said year, on June 10, 1834, was totally lost. The general issue was pleaded.
It appeared on the trial, that a sloop was built in 1816, and was enrolled by the name of the Sophronia, and was again enrolled in the customhouse, in Portland, by the same name, March 24th, 1822. That schooner Mary was built upon the keel, floor timbers and naval timbers of the said sloop Sophronia, and the size enlarged nearly twelve tons, and the name of the Mary given to her after being so enlarged, and that this was known to the defendants at the time of executing the policy; and that the certificate of Mark Leavit was procured by said Polleys, and presented to the customhouse to obtain the enrolment of the schooner Mary, without any fraudulent intent to deceive or defraud, but with a fair and honest intention, as the jury believed. But that the enrolment of the sloop Sophronia was not first surrendered and delivered up at the customhouse before the issuing of the enrolment of the Mary, which was on the 3d day of June, 1833.
The counsel for the original defendant, on the trial, objected to the admission in evidence of the enrolment of June 3, 1833, as contrary to the laws of the United States; but the judge overruled the objection, and it was admitted: and the counsel further insisted that schooner on the voyage in which she was lost, was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States, and that therefore, a policy on a vessel pursuing such a voyage was not valid, or legal and binding; but the judge also overruled this objection as insufficient to bar the action. The cause was thereupon submitted to the jury, who returned a verdict for the original plaintiff.
The defendant prosecuted this writ of error. The case was argued by Mr. Fletcher for the plaintiffs, and by Mr. Webster for the defendant.
For the plaintiff, the following points were submitted.
1. That the certificate of enrolment of the schooner named in the policy of insurance, enrolled by the name of the Mary, was procured by said Polleys but a short time before the commencement of the year for which she was insured, knowingly in direct violation of the statute of the United States then in full force; of which statute he was bound to take notice.
2. That the enrolment of said schooner thus procured by said Polleys, by a new name, was entirely illegal, and wholly null and void.
3. That said Polleys, by not delivering up the original certificate of registry, incurred a penalty of five hundred dollars; and by being registered by a new name, the schooner lost her national character, and could no longer be deemed a ship or vessel of the United States.
4. That said certificate of enrolment was knowingly used for the schooner on the voyage upon which she was lost during the year for which she was insured, she not being then actually entitled to the benefit thereof. That such use of said enrolment was illegal, and a direct violation of the twenty-seventh section of the act aforesaid; and the schooner was thereby rendered liable to forfeiture.
5. That a policy of insurance on a vessel prosecuting a voyage under a false and unlawful enrolment and certificate thereof, and in violation of a statute of the United States, in the manner aforesaid, is not a binding contract; and cannot be enforced in a Court of law.
6. That the said certificate of registry being a void, useless, and illegal document, the schooner while sailing under its pretended sanction, was not sea-worthy; and that the implied warranty of seaworthiness was on that account violated.
Mr. Fletcher, for the plaintiffs in error, said, that on the question whether this Court had a right to entertain jurisdiction of this writ of error, to the Supreme Judicial Court of Maine, all the cases were collected in the opinion of this Court, in the case of Crowell vs. Randal, 10 Peters.
To give the Court jurisdiction under the 25 section of the judiciary act of 1789, by which a writ of error is authorized to the Supreme Court of the state, the plaintiff must claim some privilege or exemption under an act of Congress, which has been denied to him by a misconstruction of the act. There is no necessity that the claim shall appear on the face of the record; if it appear that, unless by a misconstruction of the act, the Court could not have made the decision, or given the judgment complained of.
The record in the case before the Court, shows more than is required by the decisions of this Court. The counsel for the defendants in the State Court, now the plaintiffs in error, objected to the admission of the enrolment of the vessel insured, in evidence, as the enrolment was contrary to the laws of the United States, and the vessel was liable to forfeiture. A vessel sailing in violation of the law of the United States, could not be insured by a valid policy. The record shows that this position was denied, and thus the jurisdiction exists in this Court.
The law applicable to the facts of this case is clear and explicit. By the act of Congress of December 31, 1792, 2 Laws U.S. ch. 146, when a ship or vessel is altered or increased in burthen, or changed from one denomination to another, she must be registered anew, but by the same name, and the original register must be delivered up; a penalty of five hundred dollars is imposed for the violation of this provision of the law: and by the twenty-seventh section of the act, using a register, falsely or fraudulently obtained, if used knowingly, forfeits the vessel. The act of February 8, 1792, puts coasting vessels under the same regulations as those provided by the act of December 31, 1792, 'concerning the registering and recording of ships and vessels.' By a circular letter from the Secretary of the Treasury, providing for the execution of these laws, the collector is prohibited licensing, or enrolling, or registering a ship or vessel, unless her previous register is delivered up.
The registering of vessels has been required by all commercial nations. The object of those regulations is the encouragement of ship building, and to prevent frauds on individuals. 3 Kent's Commentaries, 139. The conduct of the defendant in error was contrary to the policy of the law, and in violation of it. No justification is offered for this act: and it is certain that if the collector had known the proceeding, he would not have given the register. By the register, a character was given to the vessel to which she was not entitled. She was, in fact, liable for foreign duties.
What are the legal consequences of such proceeding? These are stated in the points submitted to the Court. The schooner was entitled to a register as the Sophronia, not as the Mary; the register originally granted to her should have been delivered up to be cancelled, and when registered anew, her enlarged capacity, and the other alterations which had been made in her, should have been stated. The defendant in error was answerable for those violations of the law: and he cannot be permitted to recover on a contract growing out of this conduct.
There is a penalty of five hundred dollars imposed for these violations of the law. Imposing a penalty is equivalent to an express prohibition of the act for which the penalty is imposed.
Knowingly using a false register subjects the vessel to forfeiture. Knowing, as meant by the statutes, is a knowledge of the facts, and does not require a knowledge of the law. In a former act of Congress, 'fraudulently using' a false register, was the language of the statute; but the act of 1792, contains the term 'knowingly.' Cited, Carthew's Rep. 252. 1 Kent's Commentaries, 467. 1 Binney's Rep. 10. 5 Barn. and Ald. 335.
The contract not being binding, cannot be enforced in a Court of law. 1 Kent's Commentaries, 291. The Mary was constantly violating the laws of the United States. Every voyage was such a violation, and no policy of insurance could protect her in such proceeding. 12 East, 303. 1 Bos. and Pull. 272. 1 Marshall on Insurance, 52. 6 Mass. Rep. 101. 1 Emerigon, 542, ch. 12, sec. 14. 2 Bos. and Pull. 35. 2 Douglas's Rep. 467. 7 Term. Rep. 187. 1 Taunton Rep. 241. The Julia, 1 Cranch, 181. The Aurora, 8 Cranch, 203. The Hiram, 1 Wheat. 440. 15 Johns. Rep. 25. 12 East, 200. 17 Mass. 258. 2 Bos. and Pull. 370. 1 Maule and Selwyn, 593.
The implied warranty of sea-worthiness was violated by the vessel sailing with false papers. The loss from another cause has no influence on this principle. The vessel was insured as the Mary, when her real name was Sophronia. This is a breach of warranty. Cited, 6 Mass. Rep. 220. 7 T. Rep. 105. 4 Taunton, 373. 3 Kent's Commentaries, 257. Marshall on Insurance, 221.
Mr. Webster, for the defendants in error, objected to the jurisdiction of the Court. It does not appear that any statute of the United States was misunderstood. Suppose the Court had said the vessel is forfeited, but the insurance is valid; does this give jurisdiction? The enrolment, although imperfectly made, was in evidence. Has the Superior Court of Maine decided on the effect of an act of Congress? This does not appear, because one of the parties has a defence connected with the statute. It does not give this Court jurisdiction to revise the decision of the Court before which the defence was made. If the state Court have decided wrong on the facts, yet it does not appear the statute has been misinterpreted.
The enrolment, although irregularly obtained, was a legal paper. The parties could be visited by a penalty, but this was not a forfeiture of the vessel. To maintain that a contract made for the protection of the property of the owner of such a vessel is void, it must be shown that, by the manner of obtaining the enrolment, the party was deprived of any and all property in the vessel; or that the contract was made in aid of an illegal act. The case agreed exempts the assured from all fraud.
The contract of insurance was legal. It had nothing to do with the act of the owner in obtaining an enrolment. It stood separate and apart from all the former transactions. It was not like a contract of insurance on a vessel carrying an enemy's license, where the license makes the property enemies' property.
In reply to the cases cited by the counsel for the plaintiff in error, Mr. Webster said, they all established that the contract was itself unlawful. In such a case, a Court of law will give no assistance to enforce such an agreement.
But the acts of Congress did not make the forfeiture of the vessel, under such circumstances, absolute, even if any forfeiture could be enforced. Proceedings against her were necessary. The government could alone enforce the law, and until this was done, the sailing of the vessel was lawful. The power to remit for any penalty or forfeiture, under such circumstances, is given by the statute. Thus, until the government had fully manifested its claim, and had refused a remission, no one could allege any thing against the vessel.
The Mary was a registered vessel of the United States, and had a right to protection as such. If a revolt had been committed on board of her, it would have been punished. If she had been attacked by a foreign military force, the government of the United States would have interfered. Cited, 13 Pickering's Rep. 518. 15 East, 364. 4 Taunton, 589. 13 Mass. Rep. 589. 6 Greenleaf's Reports, 68.
Mr. Justice STORY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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