237 U.S. 19
35 S.Ct. 496
59 L.Ed. 821
THAMES & MERSEY MARINE INSURANCE COMPANY, Limited, Plff. in Err.,
Argued January 13, 1915.
Decided April 5, 1915.
Mr. Everett P. Wheeler for plaintiff in error.
Solicitor General Davis and Mr. Theodor Megaarden for defendant in error.
[Argument of Counsel from pages 20-21 intentionally omitted]
Mr. Justice Hughes delivered the opinion of the court:
The plaintiff in error is a corporation engaged in the business of underwriting policies of marine insurance. It brought this action to recover the amount paid as stamp taxes upon policies insuring certain exports against marine risks. The taxes were paid under the war revenue act of June 13, 1898 (chap. 448, 30 Stat. at L. 461); and the recovery was sought under the provisions of the act of July 27, 1912, (chap. 256, 37 Stat. at L. 240, Comp. Stat. 1913, § 6370), upon the ground that the tax was invalid, being in substance a tax upon exportation, and hence contrary to § 9, article I, of the Federal Constitution, prohibiting any tax or duty on articles exported from any state.
It was alleged that the policies were issued, in the following manner: Open policies were executed by the insurance company, containing an agreement that the company would insure all cargoes which the insured should ship in the foreign trade during the life of the policies, and that the shipper would procure such insurance, and from time to time would pay the premiums according to the regular rates for the particular voyages. When the shipper had a cargo of goods ready for export, 'designated and set apart from all other goods for shipment on a particular ship,' he filled up certain blank forms of declaration (furnished to him by the company) in accordance with the facts of each case, and delivered the declaration to the company at or about the time of the sailing of the vessel with the cargo on board. In many cases the declaration was not delivered until the vessel had sailed. Upon receiving each of the declarations, the company entered the amount and rate of the premium, and delivered to the shipper a certificate of insurance by which the goods described were insured for the voyage and upon the vessel specified. It was further averred that bills of exchange were drawn by the exportors on the consignees of the merchandise for the purchase price, and that the bills of lading and the certificates of insurance were by custom required as the necessary documents to enable the exports to be made and the bills to be discounted; and that these documents were actually forwarded to the foreign country to which the goods were shipped. At the end of each month, the company rendered to the insured a bill for the premiums which had accrued in accordance with the declaration; and, monthly, the company presented to the collector a book containing a summary of the premiums earned in respect of such insurance, and purchased the stamps required by the war revenue act. By direction of the collector, in accordance with the method prescribed for mutual convenience by the Commissioner of Internal Revenue, these stamps were affixed to the book, and then canceled. In each case, the goods were in fact exported, and were insured during their transit by sea to the foreign ports. The claim for the refunding of the taxes was duly presented to the collector, it was alleged, under the act of 1912, and was transmitted to the Commissioner of Internal Revenue, who refused payment.
The government demurred upon the grounds that the court had no jurisdiction of the defendant, or of the subject of the action, and that the petition did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, holding the tax to be a valid one. 217 Fed. 685. Judgment was entered dismissing the petition, and this writ of error has been sued out.
The government seeks to support the judgment by denying the jurisdiction of the district court upon the ground that it was not shown that the petitioner resided within the district (act of March 3, 1887, chap. 359, § 5, 24 Stat. at L. 506, Comp. Stat. 1913, § 1575), as it was not set forth that the petitioner was incorporated in the state of New York (Shaw v. Quincy Min. Co. 145 U. S. 444, 36 L. ed. 768, 12 Sup. Ct. Rep. 935). It was alleged that the petitioner was a corporation, and that 'its principal office for conducting said dusiness in the United States and its residence was and is in the borough of Manhattan, city of New York, in said district.' On behalf of the company, it is asserted in argument that it is a foreign corporation, that is, foreign to the United States, and hence it is insisted that the provision of § 5 of the Tucker act is inapplicable, citing in Re Hohorst, 150 U. S. 653, 660, 37 L. ed. 1211, 1214, 14 Sup. Ct. Rep. 221. This question is not here, as the record does not show the place of incorporation. But the contention of the government is inadmissible for the reason that it does not appear that the objection as to the district was raised below, and the decision of the district court which has jurisdiction 'concurrent with the court of claims' of the subject-matter of such an action within the prescribed limit as to amount (Judicial Code, § 24, ¶20 [36 Stat. at L. 1093, chap. 231, Comp. Stat. 1913, § 991 (20)]) was invited upon the merits. The requirement of § 5 of the Tucker act, which was saved from repeal (Judicial Code, § 297), is one of procedure, which could be waived (United States v. Hvoslef, 237 U. S. 1, 59 L. ed. ——, 35 Sup. Ct. Rep. 459), and the question of jurisdiction submitted under the demurrer was deemed by the district court to be the same as that which had been considered and decided in the Hvoslef Case (217 Fed. 680, 682, 683); that is, as to the authority to entertain a suit against the United States under the act of July 27, 1912, supra. While the government asserted in its demurrer that it appeared specially, it raised by that pleading not simply the question of the jurisdiction of such a suit against the United States, but also that of the merits, seeking, and thus obtaining, a decision as to the constitutionality of the tax, and hence of the insufficiency of the facts alleged to support a recovery. Such a demurrer is in substance 'a general appearance to the merits,' and is a waiver of objection with respect to the district in which the suit was brought. Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U. S. 368, 372, 52 L. ed. 1101, 1103, 28 Sup. Ct. Rep. 720; St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 130, 35 L. ed. 659, 660, 11 Sup. Ct. Rep. 982.
The other preliminary questions being identical with those determined in United States v. Hvoslef, supra, we come at once to the application of the constitutional provision; and upon this point it is unnecessary again to review the decisions establishing the governing principle. There the question was as to the validity of the tax upon charter parties which were exclusively for the carriage of cargo from state ports to foreign ports, and here the question is as to the tax upon policies insuring such exports during the voyage. Is the tax upon such policies so directly and closely related to the 'process of exporting' that the tax is in substance a tax upon the exportation and hence within the constitutional prohibition? It is manifest that we are not called upon to deal with transactions which merely anticipate exportation, or with goods that are not in the course of being actually exported. Coe v. Errol, 116 U. S. 517, 29 L. ed. 715, 6 Sup. Ct. Rep. 475; Turpin v. Burgess, 117 U. S. 504, 29 L. ed. 988, 6 Sup. Ct. Rep. 835; Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; Cornell v. Coyne, 192 U. S. 418, 48 L. ed. 504, 24 Sup. Ct. Rep. 383. Nor have we to do, in the present case, with the taxation of the insurance business, as such, or with the power of the state to fix the conditions upon which foreign corporations may transact that business within its borders. Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357; Hooper v. California, 155 U. S. 648, 39 L. ed. 297, 5 Inters. Com. Rep. 610, 15 Sup. Ct. Rep. 207; Noble v. Mitchell, 164 U. S. 367, 41 L. ed. 472, 17 Sup. Ct. Rep. 110; Nutting v. Massachusetts, 183 U. S. 553, 46 L. ed. 324, 22 Sup. Ct. Rep. 238; New York L. Ins. Co. v. Deer Lodge County, 231 U. S. 495, 58 L. ed. 332, 34 Sup. Ct. Rep. 167. Let it be assumed, as this court has said, that the insurance business, generically considered, is not commerce; that the contract of insurance is a personal contract,—an indemnity against the happening of a contingent event. The inquiry still remains whether policies of insurance against marine risks during the voyage to foreign ports are not so vitally connected with exporting that the tax on such policies is essentially a tax upon the exportation itself.
The answer must be found in the actual course of trade; for exportation is a trade movement, and the exigencies of trade determine what is essential to the process of exporting. The avails of exports are usually obtained by drawing bills against the goods; these drafts must be accompanied by the bills of lading and policies or certificates of insurance. It is true that the bills of lading represent the goods, but the business of exporting requires not only the contract of carriage, but appropriate provision for indemnity against marine risks during the voyage. The policy of insurance is universally recognized as one of the ordinary 'shipping documents.' Thus when payment is to be made in exchange for such documents, they are held to include not only a proper bill of lading, but also 'a policy of insurance for the proper amount.' Tamvaco v. Lucas, 1 Best & S. 185, 197, 206. It is not sufficient to tender the bill of lading without the policy. Benjamin, Sales, § 590, note; Hickox v. Adams, 34 L. T. N. S. 404, 3 Asp. Mar. L. Cas. 142. The requirements of exportation are reflected in the familiar 'C. I. F.' contract (that is, at a price to cover cost, insurance, and freight), which has 'its recognized legal incidents, one of which is that the shipper fulfils his obligation when he has put the cargo on board and forwarded to the purchaser a bill of lading and policy of insurance, with a credit note for the freight, as explained by Lord Blackburn in Ireland v. Livingston, L. R. 5 H. L. 395, 406, 41 L. J. Q. B. N. S. 201, 27 L. T. N. S. 79.' Str oms Bruks Aktie Bolag v. Hutchison  A. C. 515, 528. See also Mee v. McNider, 109 N. Y. 500, 17 N. E. 424. It cannot be doubted that insurance during the voyage is, by virtue of the demands of commerce, an integral part of the exportation; the business of the world is conducted upon this basis. In illustration of this, the appellant appropriately directs our attention to the recent action of Congress in establishing the War Risk Insurance Bureau, by which the government itself undertakes to supply insurance against war risks in order to protect exports from the burden of excessive rates. Act of September 2, 1914 (chap. 293, 38 Stat. at L. 711). In the report of the Committee of the House on interstate and Foreign Commerce, recommending the passage of the bill as an emergency measure, reference is made to the fact that other nations were insuring the vessels and cargoes under their respective flags against war risks. House Reports, 63d Cong. 2d Sess. Report No. 1112. The bill itself recites that the foreign commerce of the United States 'is now greatly impeded and endangered' through the lack of such provision, and that it is deemed 'necessary and expedient that the United States shall temporarily provide for the export shipping trade adequate facilities for the insurance of its commerce against the risks of war.' This is a very clear recognition of the fact that proper insurance during the voyage is one of the necessities of exportation. The rise in rates for insurance as immediately affects exporting as an increase in freight rates, and the taxation of policies insuring cargoes during their transit to foreign ports is as much a burden on exporting as if it were laid on the charter parties, the bills of lading, or the goods themselves. Such taxation does not deal with preliminaries, or with distinct or separable subjects; the tax falls upon the exporting process.
For these reasons, we must conclude that, under the established rule of construction, the tax as laid in the present case was within the constitutional prohibition. Fairbank v. United States, 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135; United States v. Hvoslef, 237 U. S. 1, 59 L. ed. , 35 Sup. Ct. Rep. 459.
Mr. Justice McReynolds took no part in the consideration and decision of this case.