## Facts

- An American merchant insured a vessel and cargo trading near Portuguese colonial ports in South America under a marine insurance policy.
- The policy contained a special exclusion clause stated either as (1) the insurers do not take the risk of illicit trade with the Portuguese, or (2) the insurers are not liable for seizure by the Portuguese for illicit trade.
- Portuguese authorities, acting under Portuguese trade restrictions, seized the vessel on an allegation of illicit trade.
- The insured sought coverage for the seizure; the underwriters denied liability under the exclusion.
- The parties disputed (1) the meaning and reach of the exclusion and (2) what evidence was sufficient to prove Portuguese law and Portuguese judicial proceedings in a U.S. court.
- A lower federal court entered judgment for the underwriters; the insured sought review by writ of error.

## Issues

1. Whether the policy language excluding “illicit trade with the Portuguese” (or excluding “seizure by the Portuguese for illicit trade”) bars recovery for a seizure made by Portuguese authorities on an allegation of illicit trade.
2. Whether a nation’s authority to seize vessels attempting an illicit trade may be exercised beyond its territorial waters.
3. How foreign law must be proved in U.S. courts and what authentication is required for foreign judicial records to be admitted.

## Decision

- The Supreme Court affirmed the judgment for the underwriters.
- The Court held the two exclusion phrasings were “substantially the same” and allocated to the insured the risk of seizure for alleged illicit trade under Portuguese law.
- The Court recognized that a nation’s right to seize vessels attempting an illicit trade is not confined to its harbors or immediate coastal range and may be exercised beyond territorial limits when reasonably necessary to enforce its laws.
- The Court ruled that foreign law is treated as fact and must be proved by sworn testimony or equivalent reliable authority; a certificate under the seal of a person styling himself Portugal’s Secretary of Foreign Affairs was insufficient on this record.
- The Court stated that foreign judgments are ordinarily proved by exemplification under the great seal, a true copy proved as such, or a properly authenticated certificate of an authorized officer; inferior proof may be accepted if the usual modes are unavailable.

## Legal Principles

- Marine insurance exclusions for “illicit trade” and for “seizure for illicit trade” may be construed as equivalent in assigning to the insured the risk of seizure based on alleged violations of the foreign sovereign’s trade laws.
- A sovereign may take reasonable measures beyond its territory to prevent and punish illicit trade; measures that unnecessarily vex or harass lawful foreign commerce may be resisted by other nations.
- Foreign law in U.S. courts is a question of fact requiring proof by oath or other recognized high-authority evidence; a consul lacks inherent authority to authenticate the laws of a foreign nation.
- Foreign judicial records are generally authenticated by exemplification under the great seal, by a proved true copy, or by an authorized officer’s certificate that is itself properly authenticated; if those forms are unattainable, lesser evidence may be considered.
- Translations offered to establish foreign law or proceedings require sworn or equivalent reliable support; an unsworn consular translation has no special evidentiary status.

## Conclusion

The Court enforced a marine-policy exclusion that placed on the insured the risk of seizure for alleged illicit trade, recognized limited extraterritorial maritime enforcement authority when reasonably necessary, and articulated early federal standards for proving foreign law and authenticating foreign judicial records.


Church v. Hubbart, 6 U.S. (2 Cranch) 187 (1804)