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ALBANY,

Augult 1803.

Sarnewall

v.

Church.

preponderate? That the vessel was seaworthy at the con> mencement of the voyage, is every way reasonable. Bamewall wanted to buy a sound ship: strong, tight and staunch fpr the purposes of trade. He was solicitous she should be so, and his interest. coincided with his wish. To ascertain the fa£r, she was critically examined in parts where she could not be sound, if she was not seaworthy ; this must have weighed with the jury, and they have found accordingly. Take the account given of her before, and ju>t after her purchase, and see if it is possible that the return to the commission could be true? But to set aside this verdict the court must go a step further than even the witnesses under it; they must say the vessel was not only not seaworthy at Honduras, but that she was not so at Jamaica.

They must go still further, and say none of the decay took, place whilst at Jamaica, Honduras, or on the voyage. To constitute unseaworthiness, one or two defective timbers are not sufficient. The vessel must be in such a situation as to be unable to perform her voyage. Can this be said when the Hope left Jamaica? If not, the cause will not be sent back. Besides there is no further evidence to be gotten. Therefore, there can not be any new light thrown upon the subj e£t. What is to be derived from the testimony under the commission ought, perhaps, to be received with great caution, if meant to affect the seaworthiness of the ship at the inception of her voyage. She had been a long time in a climate more than ordinary deleterious to shipping; she had not been wafted from thence by halcyon gales, but had encountered according to die second protest, violent winds and boisterous weather under a press of sail, which made her labor, and after these events her state is described. These circumstances were doubtless taken into consideration by the jury, and it is impossible to send the case to them, under better circumstances, than they have already had it. It may be alledged that we ought to have produced the captain; but the court will remember hi; is a seafaring man, and obliged to follow his profession. If, however, he was necessary, he certainly must have been more peculiarly so to the opposite side; and die) hare not thought fit to produce him. The objection which has been made on account of the clearance vanishes before the circumstances of the case. That a vessel clears for a particular port is no proof of her being destined there. The contrary was declared in this case to the New-York insurance company: it appears from the letter of instructions, the captain's protest, and every thing else, that it was entirely a New-York transaction. The disclosure itself shews bow unimportant it was: It did not affect the premium. The role contended for, is to establish that a vessel-insured to one port, to which the owners declaration to one underwriter, the instructions and protest of her captain show she is destined, shall be vitiated by a clearance to another port made for the sake of saving duties. The Ostend case cited as authority for this is the very reverse. A clearance is never conclusive. 1 Marsh. 229. 231. It is the daily practice to clear out, from foreign ports, as will best suit the voyage actually intended, and this being a belligerent risk, devoid of all warranty, the hazards could not have been encreased by a want of disclosure, had if m no degree been made.

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Hoffman in reply. This has already been stated to be a case of magnitude: It is so, not only from die sum in conrrover.y, but from principle. It is peculiarly important, becau e, without examining the testimony and shewing that a verdict has been pronounced on the most contradictory ever offered, it is now become almo ,t a maxim for juries never to find a verdict for a defendant, when unseaworthiness or usury are relied on in defence. On the very outset of the trial, the jury betrayed a prejudice, on an idea that the insurer undertook to guarrantee the seaworthiness of the vessel. The court now has to decide whether the testimony will justify the verdict. We admit that where circornstances speak one language and witnesses another, circumstances are to be believed; but where two sets of witnesses speak contrary, and circumstances coincide with one set, the other must be disbelieved. Now the circumstances at the time of survey, detailed under the commission coincide with the evidence of Potts and others, that the vessel could not have been seaworthy when she left NewYork.

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ALBANY, ThisfaG then is corroborated by extrinsic testimony, th«

vJ^S" ■«_/ weight of which is clearly with the defendant. To balance

Bamcwall tfcs as ;t [s called, Middleton is examined as to the state of

V.

Church. the vessel in 1795. With as much propriety the builder might have been resorted to, and with such a latitude, it would be singular indeed if the vessel should not be proved seaworthy at home time or other, and the number of witnes e.- in process of examination rendered equal. That one circumstance relied on by the plaintiff should be literally true is impossible. That the ship did not make a pint of water, during her passage from England, neither your honors, nor the jury could believe. It is what could not happen in even going to Albany. But even this was ten months previous to her purchase, and if true, how came it that at the expiration of that time she wanted repairs to the amount of 600 pounds? notwithstanding which, Dorgan swears, she was then fit to go a voyage round the world. If he and Middleton be taken away, then the number of witnesses will be eight to four; and where there is a contrariety of testimoney, number ought certainly to prevail. The witnesses at Honduras demand from their situation more regard than those here. Dorgan had sold the vessel. Williams had a duty to perform, and is brought forward to swear to a fact, which will prove it was faithfully discharged. Can there be a doubt therefore, of the tendency to a bias? None of this can be imputed to the witnesses under the commi sion. Their testimony coincides with the .survey; a survey taken by the plaintiff's captain made use of by the plaintiff to substantiate his claim befoie the underwriters, used by him in evidence, and without which there is no proof of loss. It is singular that an argumert thoukl be raised by the plaintiff against testimony which he himself, through his own agent, the captain, localised to be produced. But what is still more extraordinary is, that when the survey is to be impeached, and tlr. fads it contains discredited, the plaintiff's captain, \v! ■ wa;. present, and saw whether they were true or not i passed by, and Williams, a New-York ship carpenter, called upon to negative them. This, to be sure, he doe pretty roundly, by asserting on oath, that all who these were examined 2000 miles off, swore falsely to things before theirejres, and which his never saw. The plaintiff never eren examines his own correspondent at Honduras, but rests on a person here to contradict what passed there. The seaworthiness of the vessel is in no one point asserted by the captain in his protests. In neither, does he shew any adequate cause of decay. Giving the utmost extent to all he sap, it could amount only to leaking, not to rottenness: To a rottenness which would not admit of repairs. Yet it i- suggested she might have been perfectly seaworthy, staunch, tight, and strong, when she left Jamaica, only nine weeks before. The clearance being false rendered the vessel liable to be carried in for adjudication, and though she might not be ultimately condemned, it would subject her to further proof. The risk, therefore, was encreased, and ought to have been made known. 1 Marsh. 232.

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Pendleton on die same side. Had the vessel been met with by a French cruiser, she would, on account of her clearance from a British settlement, to a British port, certainly have been carried in: So, had she been met by a British cruiser steering a course different from her destination, it would have been attended with the same consequence. Wherever papers appear false and colourable, a neuter » in a worse situation than a belligerent. She is exposed not only to be captured by one party, but by all; for every nation i. equally her enemy. If the court will refer to die do&rine of the admiralty, they will find this to be the law. Hie consequence i-, that allowing the risk of the underwriwhere there i > no warranty to be a war risk; this is greatthin any war risk: because, among hostile parties there are some friends, but a neuter thus navigating, has none, and a usage has not been proved.

Here it was observed by counsel, that the effe£t of colourable paper-; had never yet been the object of particular discussion, and that if the court was disposed to hear an argument on the subject, they wished to have another day appointed. This being accorded, the second argument was afterwards opened by

Troup for the defendant. The question now is whether

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was a concealment of a material faft. If so, that, varying
the risk, must of- course avoid the policy. At the period
when it was effefted, and the voyage to be performed,
Great Britain was involved in a war with France, Spam,
and Holland. The consequences therefore of a false paper,
would be different from those, which would arise in a time
of peace. It is a settled maxim of the law of nations
that neutrals, to have the benefit of their neutrality, should,
in every part of their conduct, proceed with the utmost
good faith. All neutral ships are therefore to possess gen-
uine papers. These are, on her being boarded at sea, the
first objects of examination. If they present false or co-
lourable appearances, it is on all sides deemed a sufficient
reason for bending in for further examination. If dis-
covered to be fraudulent, condemnation is sure to ensue: if
fair, the only indulgence is to produce further proof of
neutral character, on establishing of which, though ac-
quitted, costs are invariably to be paid. For the biDiger-
ent is not in fault when the papers do not speak that which
is true. The risk of interruption and detention is there-
fore enhanced by a false or colourable paper. Abbot 184.
1 Moll. 329. b. 2. c. "2. S. 9. Coll. Jur. 135, 6. 1 Rob.
Ad. R*p. 371, 7, 8. 124, 6. 165, 247, 8. 2 Rob. Ad.
Rep. 158, 161, 349. 3 Rob. Ad. Rep. 77, 8. 80. The
cases cited shew that if there be an alternative destination,
even that ought to be expressed. Here not even that form
was complied with, but the clearance was prositively and
determinately false. A usage has been on a former day
urged, but the court will look to the case, and none h that
to be seen. If none, the underwriters could not presume
the clearance would be to Falmouth. Had the vessel been
met with by a French cruiser the conclusion would frorr
her clearance have been, that she was in faft a British
vessel with British property. This then is a risk and dan-
ger which with fair papers could not have been encountered.
The same would be the case let her be met with by whai
cruiser soever. Suppose even the letter of Barnewall dis-
covered, what would then have been the conelu.-ion? That
she was an American ves-el carrying an English cargo. She
was evidently in a trade authorising seizure, running *

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