ON a certificate of division of opinion of the judges of the circuit court of the United States for the district of Massachusetts.
The case, as stated in the opinion of the court, was as follows.
On the 1st of October 1824, the defendants, the Merchants' Insurance Company, underwrote a policy of insurance for the plaintiffs, Carrington and others, for ten thousand dollars, on property on board the ship General Carrington, at and from the port of Coquimbo in Chili, to any port or ports, place or places, one or more times, for and during the term of twelve calendar months, commencing on the 5th day of June 1824 at noon, and ending on the 5th day of June 1825 at noon. The policy is against the usual perils, and contains the following clause. 'It is also agreed that the assurers shall not be answerable for any charge, damage or loss which may arise in consequence of seizure or detention, for or on account of illicit or prohibited trade, or trade in articles contraband of war. But the judgment of a foreign consular or colonial court shall not be conclusive upon the parties as to the fact of there having been articles contraband of war on board; or as to the fact of an attempt to trade in violation of the law of nations.'
The ship sailed from Providence, Rhode Island, on the 21st of December 1823, clearned for the Sandwich Islands and Canton, but was immediately bound to Valparaiso in Chili, with such ulterior destination as was stated in her orders; the clearance being a usual and customary mode of clearance at that time for vessels bound to Chili and Peru. A part of the cargo consisted of eighteen cases of muskets and bayonets, each case containing twenty; and three hundred kegs or quarter kegs of cannon powder, containing about twenty-five pounds each; and these, together with the residue of the cargo, belonged to the owners of the ship. At the commencement of the voyage, and until the final loss of the ship, open hostilities existed between Spain and the new governments or states of Chili and Peru. From the orders, it was apparent that the object of the voyage was to sell the cargo in Chili and Peru. The ship was to proceed direct for Valparaiso, and was to enter that port under the plea of a want of water. Some part of the cargo was expected to be sold at that port; and thence the ship was to proceed along the coast of Chili and Peru for the purposes of trade. There is no allegation that the underwriters were not well acquainted with the nature and objects of the voyage.
The ship arrived at Valparaiso on the 17th of April 1824. At the time of her arrival, and until the loss, as hereinafter stated, the Spanish royal authorities were in possession of a portion of upper Peru, including Quilca and Moliendo, and of the port of Callao in lower Peru. The rest of Peru, and the whole of Chili, were in possession of the Peruvian and Chilian new governments. In the harbour of Valparaiso sixteen casks of the powder were, with the knowledge of the government, sent on board of an English brig then in the harbour; and, as the plaintiffs allege, sold to the master of the brig: and all the muskets except ten, alleged to be kept for the ship's use, were landed in Valparaiso with the knowledge of the government.