were examined 2000 miles off, swore falsely to things before their eyes, and which his never saw. The plaintiff never even 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 says, it could amount only to leaking, not to rottenness : To a rottenness which would not admit of repairs. Yet it is 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. Pendleton on the 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 is in a worse situation than a belligerent. She is exposed not only to be captured by one party, but by all; for every nation is equally her enemy. If the court will refer to the doctrine of the admiralty, they will find this to be the law. The consequence is, that allowing the risk of the underwriter where there is no warranty to be a war risk; this is greater than 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 effect of colourable papers 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 wa3 afterwards opened by Troup for the defendant. The question now is whether the non disclosure of the clearance being for Falmouth, ALBANY, Auguft 1803. Barne wall V. Church. ALBANY, August 1803. Barnewall V. Church. was a concealment of a material fact. If so, that, varying the risk, must of course avoid the policy. At the period when it was effected, and the voyage to be performed, Great Britain was involved in a war with France, Spain, 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 genuine papers. These are, on her being boarded at sea, the first objects of examination. If they present false or colourable appearances, it is on all sides deemed a sufficient reason for sending in for further examination. If discovered 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 acquitted, costs are invariably to be paid. For the billigerent is not in fault when the papers do not speak that which is true. The risk of interruption and detention is therefore enhanced by a false or colourable paper. Abbot 184. 1 Moll. 329. b. 2. c. 2. S. 9. Coll. Jur. 135, 6. 1 Rob. 165, 247, 8. 2 Rob. Ad. Ad. Rep. 371, 7, 8. 124, 6. risk not contemplated, and therefore the underwriter entitled to say non hæc in fœdera veni. That no injury had ensued from this particular cause is immaterial, the concealment being fraudulent. 7 D. & E, 708, 9, 10.* Harrison contra. The question is whether the concealment be of a material fact. This certainly was a matter for jury determination. McDowal v. Frazer. Shirley v. Wilkinson. Park 205, 6, 7. It ought not therefore now to avail. Barber v. Fletcher, was exactly the same ground of application. Doug. 292. Had the fact been material it ought to have been made an object of particular enquiry before the jury, and this not having been done it is now too late. This position the authorities cited will establish. Planche v. Fletcher. 1 Marsh. 345, 6. Evinces how little stress was laid upon the clearance. Lord Mansfield in that case says, the non-disclosure of the proclamation, made no difference, for other underwriters insured afterwards at the same rate of premium. So here, the risk was continued without any advance of price; and on this very circumstance the jury probably have decided. The encreased risk by the colourable clearance, allowing all that has been said, was within the policy. It was contemplated by the underwriter to embrace all belligerent risks; therefore there could be no concealment of a risk which was purely belligerent, and comprehended in the premium. There was no warranty; capture then was a risk within the policy, and the underwriter cannot therefore set up as a defence, that from this paper the vessel ran a risk of being taken. For, that he should indemnify against this, was a part of the contract itself. It can never therefore be urged that there was a concealment of that, which from the nature of the agreement is necessarily implied, and for which a premium must consequently have been paid. To explicitly communicate such circumstances is a refinement, in the doctrine of disclosure, of perfectly novel invention. Under a general policy, for whomsoever it may concern, unaccompanied with warranty, it is unnecessary to state that the proprietor is a billigerent, 2 Emer. 460. In Wooldridge v. Boydell, Doug. 16, the immateriality of the clearance is allowed; and in the present case it must be wholly so when every war risk was included. ALBANY, August 1803. Barnewall V. Ghurch. Rich v. Parker. ALBANY, August 1803. Barnewall V. Church. Hamilton same side. It is unnecessary elaborately to argue in support of that which a decision of the court has already settled. The policy covers every belligerent risk which could arise. It might be French, British, Spanish or Dutch property, for every war peril is covered. If so, condemnation is insured against. The question then is, can any situation in which neutral property is placed, be attended with more dangerous consequences than when confessed to be that of an enemy in whose hands soever it may fall? Can the risk of being carried in for adjudication (which is all that is attempted to be established from the clearance) be greater, than the certainty of condemnation against which the policy insures? I really do not know how to argue the point more forcibly, than by asking the question. Pendleton in reply. This argument presents two questions; one general, the other particular. The general question is whether a vessel having false documents relating to her voyage, and destination should not always forfeit the protection of the policy. It is of the utmost importance to neutrals, to establish a character for good faith. False papers ought therefore to be discountenanced, from motives of public policy, as tending to corrupt the morals of the people, by inducing perjuryand dishonorable speculations in covering property. It is settled that every thing increasing the hazard ought to be disclosed. The true inquiry then is, whether the paper might not have produced a hazard, the vessel would not have been subject to without it? By the French ordinance of 1744, false papers are worse than either the want, or destruction of them, and in the Ostend case, it is to be remembered the usage was to have them false. They invariably subject to further proof. The answer to the Prussian memorial, and the case of the De Hoop, prove this. They even encrease billigerent risks. For an enemy's property always receives protection from one side, but false papers take it away from all. A clearance is also a public document, and comes from public officers. It ought therefore to be genuine; neither a forgery, nor a falshood, because it may implicate them. They are also applied to purposes of acknowledged fraud; to cheat the revenues of other countries; policy therefore would dictate the propriety of leaning against them, though the revenue codes of foreign nations, are not noticed in our courts. Had the vessel been cleared for New-York, she could have run no kind of risk of detension; therefore on the particular question, as relating to this cause, it enhanced the danger. Rich v. Parker, 7 D. & E. 705. 1 Esp. Rep. 615. And this like a deviation avoids the policy, not being qualified by any usage, either general or particular. Interest of the Thompson, justice. This was an action of assumpsit on a policy of insurance, dated in December, 1799, on the ship Hope, Edward Atkinson master, " At, and from Kingston in Jamaica, to Honduras, during her stay there, and at, and from thence to New-York." The vessel valued at 8,500 dollars-premium 12 1-2 per cent. A total loss was claimed, occasioned by perils of the sea. insured and the abandonment were proved. set up was, that the vessel was not seaworthy; that her clearance was for Falmouth, and a market, instead of NewYork, as the voyage purported to be, and that this ought to have been disclosed to the underwriters. The cause was tried at the New-York circuit in June 1802, and a verdict found for the plaintiff, as for a total loss; application is now made for a new trial. The defence The substance of the testimony produced on the trial, as to the question of seaworthiness, was, on the part of the plaintiff, as follows:-The voyage commenced on the 21st of November, 1799. Thomas Williams and William Peacock, ship carpenters swore, that in April 1799, previous to the plaintiff's purchasing the vessel, they were employed by him to examine her; she was then laying in the harbour of New-York; that they accordingly did examine her, bored in many places that usually decay soonest, and found her perfectly sound. She appeared to be a very strong, well built ship. That after the plaintiff had purchased her, they were employed to make certain repairs; that they stripped off all the old sheathing, found her bottom English elm, and perfectly sound; her naval hoods, and head knees sound: The plank taken off so, that they could discover her top Hh ALBANY, Auguft 1803. Barnewall V. Church |