v. tiffs in this fuit; that having fo put into Cape-François, the NEW-YORK, cargo was landed to repair the veffel; that the public officers May 1803. acting under the French government there, took from them E. Jenks and al. nearly all the provifions on board the floop, and the captain R. s. Hallet and fupercargo were permitted to fell and did fell the re- and W. Bowne. mainder to different perfons there; that the captain and supercargo made a contract with the public officers, by which, as to stamp a they were to be paid for the provisions in thirty days, but the ter on the veffel. payment was not made; that with the proceeds of the re- dict the court On a special vermaining parts of the cargo they purchased the whole of the cannot intend cargo which was on board at the time of the capture, and alfo is not found. any thing which feventeen hogfheads of fugar, which they fent home to NewYork, on freight. That the faid officers forbade the faid master and supercargo of the floop from taking on board the cargo landed from the faid veffel, or from conveying from the faid island any fpecie, by reafon whereof they were compelled to take the produce of that country in payment; that the floop, with thirty thousand weight of coffee on board, twenty-five thousand pounds weight of which was intended to be infured by the present policy, failed from Cape-François, on the twenty-third day of February, in the year laft aforefaid, on the voyage mentioned in the policy of infurance, having on board the ufual documents of an American veffel; that the floop, in the courfe of her faid voyage, was captured by a British frigate and carried into the island of Tortola, and veffel and cargo libelled, as well for being the property of the enemies of Great-Britain, as for being the property of American citizens trading contrary to the laws of the United States; that, at the time of the capture of the floop, the following paper was found on board; " Liberty, Safe Conduct, Equa"lity At the Cape, 11th Thermidor, fixth year of the "French Republic, one and indivifible. The General of the "divifion and private agent of the Executive Directory at St. "Domingo, requests the officers of the French navy and pri"vateers of the Republic, to let pafs freely the American "veffel called the master property of Mr. E. Born Jenks, merchant at Providence, "ftate of Rhode-Ifland, in the United States, arrived from "the faid place to the Cape-François for trade and bufinefs. "The Citizen French Conful, in the place where the faid NEW-YORK, E. Jenks and al. V. R. S. Hallet and W. Bowne. "veffel fhall be fitted out, is invited to fill with her name, Agency." Hamilton and Pendleton for the defendants. The plaintiffs are not entitled to recover. First, because the warranty is not true. Secondly, because the voyage infured was illegal. On the first point. The fentence states that it is enemy's property and even if not, the privilege of neutrality was forfeited, by the part owner's accepting a paffport from another country, and failing under the protection of that flag. In the cafe of the Vigilantia, 1 Rob. Ad. Rep. 13, 14, 15, Sir William Scott exprefsly lays it down, that a veffel, failing with the pafs of a foreign country, fhall be deemed of that country whose pafs fhe carries. It cannot be contended that the paper alluded to was a clearance. That according to I Valin, 282 contains "the name of the master, and of the "veffel, its tonnage and cargo, the port of departure and "destination." Here blanks are left, and the paper bears date before the arrival of the veffel, fhewing it was made out for her, on a preconcerted plan of trade and business. On the fecond point. It is only neceffary to look at the dates of the act of Congress and the tranfactions. The first act was paffed in June 1798, to take effect on the first of July following; the fecond, on the 9th of February 1799, to be in force on the 3d of March following: both thefe acts require a bond to be given, not to enter French ports for trade and V. traffic, nor to trade there though driven in by ftrefs of wea- NEW-YORK, ther. The Nancy failed the 12th of December 1798; put May 1803. into the Cape, January 1799: failed on the 23d of February E. Jenks and al. following, and on the 23d of April next the policy was ef fected under the acts of Congrefs therefore the felling her and W. Bowne. cargo was illegal, as even in cafes of putting into French ports from diftrefs, traffic is forbidden. Hoffman and Bogert for the plaintiffs. The jury have exprefsly found the warranty to be true, and the inconclufivenefs of foreign sentences is settled in the cases of * Vandenheuvel v. Church, and the fame against the United Infurance Company of New-York. This therefore is a complete anfwer to the first objection. But as the fentence is ambiguous, and affigns as a cause of condemnation, that which the Law of Nations does not warrant, it is doubtful whether in England it would not be examinable. I Marfh on Inf. 291. 294. Bernardi v. Motteux, Doug. 554. The paper talked of as a pass, was merely a clearance and paffport to fecure R. S. Hallet 1 Lex. Mer. Amer. 337-341. + See Vase v. Ball. 1 Lex. Mer. Amer. 333 NEW-YORK, Per Curiam. It will be obferved that this is the cafe of a special verdict, and the court can intend nothing but what E. Jenks and al. is found by the jury. This rémark is an answer to much of the reasoning on both fides, and narrows the grounds of discus and W. Bowne. fion to the following points : V. R. S. Hallet Ift. Whether the veffel and cargo, although literally American according to the implied warranty in the policy, had forfeited the privilege of that character, by accepting the protection of a paffport from one of the belligerent nations? 2d. Whether the purchase of the cargo in a French port was within the prohibition of the act of Congress of the 13th June 1798, and an illegal trade. In As to the first, it appears that the Nancy failed with the ufual documents of an American veffel, and was in every respect entitled to be confidered as fuch, unless the French paffport which the received at St. Domingo would deprive her of that privilege. The general rule by which to determine the national character of a veffel is the domicil of the owner. the present cafe the owners refided in the state of RhodeIsland-We admit the exception to this rule where the veffel navigates under the flag or affumed character of a country to which she does not belong-but the inftance before us we ap prehend is not the case of a veffel failing under that protection, or, as it is termed by Sir William Scott, under the pass of a different nation; her papers were all American except the one in queftion; fhe was in fact American, if we believe the verdict, and the profeffed no other than the American character. The additional paper which the received on board at the Cape, according to its import, was not inconfiftent with that character; on the contrary she was therein ftated to be the property of Mr. Jenks, merchant at Providence, ftate of Rhode-Ifland; that paper, accompanied with the other documents the poffeffed, could not be evidence of her being French property, or employed as a French veffel: fhe had come from a French port, and was deftined to a Dutch Ifland, both of which were lawful; and it was natural, and we believe is ufual in fuch cafes, for veffels to feek for protection, and guard themselves against the cruifers of the power whose ports they have vifited. This paper, unfupported by other evidence of belligerent property or employment, could be received in that light only. Connected with the fact that all V. R. S. Hallet Intercourfe had been prohibited by our government at that NEW-YORK, period with the French nation, we think it afforded a reafon- May 1803. able ground of fufpicion that she was employed in the fervice E. Jenks and al. of the French and perhaps the risk was thereby enhanced, but fo far as that fact was material, the prohibition was known to and W. Bowne. the underwriters before they fubfcribed the policy, and they must have estimated the increafed danger, if any, that refulted from it. Of itself, we think, it would afford an additional fecurity against one of the belligerent parties, (the French) and could not alone be a cause of capture, or fufficient to authorize a detention by any other belligerent. In practice, we believe it is cuftomary for veffels to endeavour to protect themselves, by papers of this defcription from the public agents of every nation from which they can be obtained, and they have been confidered as affording security, instead of endangering their neutrality. In determining the fecond queftion it is again neceffary to recur to the facts found by the verdict. From them it ap pears that the veffel was compelled to put into the Cape in diftrefs; that when there the cargo was landed for the purpofe of repairing her; that nearly all the provifions were taken by the French government which prohibited relading any part of the cargo, and permitted to barter what was left for the produce of the island only, and to difpofe of it in no other way; if this be true they had no alternative but to comply with the terms prefcribed, or facrifice the whole of their property. Their acts were acts of neceflity and coercion, and the law of Congrefs which fufpended the commercial intercourfe with France and her dependencies, cannot reasonably be conftrued to apply to a cafe of this defcription; its object was to prevent an intentional, or voluntary traffic, and not to compel a facrifice of property or inflict a penalty in cafes of diftrefs or neceffity. That would be a conftruction exceffively fevere, and contrary to the spirit and intent of the act. On this point we understand a fimilar decifion has been made in the District Court of this ftate, wlrich on appeal, was affirmed by Judge Patterson in the Circuit Court of the United States. We are therefore of opinion, on both points, that the plaintiffs are entitled to recover. K |