« ForrigeFortsett »
tife in this fuit; that having fo put into Cape-Frangnis, the Ne^-york, cargo was landed to repair the veflel; that the public officers May 'J|°*\ acting under the French government there, took from them E. jerks and al. nearly all the piovifions on board the floop, and the captain v
and fupercargo were permitted to fell and did fell the re- and \v. Bowne.
mainder to different perfons there; that the captain and fu
percargp made a contract with the public officers, by which, naowiafdiaracthey were to be paid for the provifions in thirty days, but the teronthe TefleL payment was not made; that with the proceeds of the re- ^ S« court" maining parts of the cargo they purchafed the whole of the cannot intend cargo which was on board at the time of the capture, and alfo ^Jot found. ieventeen hogfheads of fugar, which they fent home to NewYork, on freight. That the faid officers forbade the faid mafter and fupercargo of the floop from taking on board the cargo landed from the faid veflel, or from conveying from the faid Vitand any fpecie, by reafon whereof they were compelled to take the produce of that country in payment; that the floop, with thirty thoufand weight of coffee on board, twenty-five thoufand pounds weight of which was intended to be infured by the prefent policy, failed from Cape-Francois, 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 veflel -, that the Hoop, in the courfe of her faid voyage, was captured by a Britifh frigate and carried into the ifland 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, 11 th 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, requefts the officers of the French navy and priu vateers of the Republic, to let pafs freely the American "veflel called the mafter
"property of Mr. E. Born Jenks, merchant at Providence, "ftate of Rhode-lfland, in the United States, arrived from "the faid place to the Cape-Francois for trade and bufinefs. * The Citizen French Conful, in the place where the faid NEW-YORK, "veflel fhall be fitted out, is invited to fill with her name^
May 1803. « anj t^e captain's, the blank left on thefe prefents; in at
E Jenks and al "teftation of which he will pleafe to fet his hand hereupon.
R. s.Hallct (Si8ned) J- HEELOUVILLE.
ind'w. Bowne. (Signed) Gauthier, the General Secretary of the
which paper was received on board the floop at Cape-Francois, and was on board when (he left that place; that the property infured by the policy aforefaid was claimed by the find Zebedee Hunt, and was condemned by a fentence of the faid court of Vice-Admiralty, in the following words: "that "the faid floop Nancy, and cargo on board, claimed by the "faid Zebedee Hunt, as by the proceedings will fhew to be "enemies property. And as fuch, or otherwife, liable to "confiscation, and condemned the fame as good and lawful "prize to the captors." That the plaintiffs are Americans and were owners of the property infured, and that the fame was duly abandoned to the underwriters.
Hamilton and Pendleton for the defendants. The plaintiffs are not entitled to recover. Firft, becaufe the warrantyis not true. Secondly, becaufe the voyage infured was illegal. On the firft point. The fentence ftates that it is enemy's property: and even if not, the privilege of neutrality was forfeited, by the part owner's accepting a pafiport from another country, and failing under the protection of that flag. In the cafe of the Vigilantia, r Rob. Ad. Rep. 13, 14, 15, Sir William Scott exprefsly lays it down, that a veflel, failing with the pafs of a foreign country, fhall be deemed of that country whofe pafs fhe carries. It cannot be contended that the paper alluded to was a clearance. That according to 1 Valin, 282 contains " the name of the mafter, and of the "veflel, its tonnage and cargo, the port of departure and "deftination." Here blanks are left, and the paper bears date before the arrival of the veflel, fhewing it was made out for her, on a preconcerted plan of trade and bufinefs.
On the fecond point. It is only neceflary to look at the dates of the aft of Congrefs and the tranfaftions. The firft aft was paffed in June 1798, to take efteft on the firft of July following; the fecond, on the 9th of February 1799, to be in force on the 3d of March following : both thefe afts require a bond to be given, not to enter French ports for trade and traffic, nor to trade there though driven in by ftrefs of wea- New-york, tbxr. The Nancy failed the 12th of December 1798; put May l8oj\ into the Cape, January 1799: ^ailcd on tlle 23d of February E. jcnk'sandaL following, and on the 23d of April next the policy was ef- v
fe£ted: 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 d\ftre/s, traffic is forbidden.
Hoirtnan and Bogert for the plaintiffs. The jury have expreisly found the warranty to be true, and the inconclufivenefs of foreign fentences is fettled in the cafes of * Vanden- * * Lex- Merheuvel v. Church, and the fame againft the United Infurance Company of New-York. This therefore is a complete anfwer to the firft objection. But as the fentence is ambiguous,! anc* »ffigns as a caufe of condemnation, that which the * see Vafe T. Law of Nations does not warrant, it is doubtful whether in BalL • LcxEngland it would not be examinable. 1 Marfh on Inf. 291. 3ii.' 294. Bernardi v. Motteux, Doug. 554. The paper talked of as a pafs, was merely a clearance and paffport to fecure againil feizure by French veflels: nor can the citation from Valin be fuppofed to be the obligatory form on all people, according to the pofitive rule of the Law of Nations. The fecond objection is of as little force as the firft. The policy was fubfcribed by the defendants with a full knowledge of the /acts and law. Though againft a ftatute prohibiting certain voyages fuch a circumftance could not prevail, it was expedled the underwriters would not have made it a ground of defence. The diffrefs however and force, which are ftated in the fpecial verdift, do away every obftacle to a recovery from the pretended illegality of the voyage. The cafe of Richardfon and others in the Diftrict Court of New-York, affirmed upon an appeal to the Circuit Court of the United States, was ftronger than the prefent, and is on this head a full exposition of the act of Congrefs. There a veffel bound to a neutral country, was captured, carried into a French port together with the cargo, condemned and fold; the owner voluntarily purchafed at that place another veffel, loaded her with fugar and came to New-York; fhe was feized and libelled under this very act; the Judge of the Diftrict Court acquitted both veffel and cargo as not within the fpirit of the ftatute. This deciGon, from its confirmation in the Circuit Court, is now the Law of the Union.
New-YORK, Per Curiam. It will be obferved that this is the cafe of
May 1803. a fpeciai verdict, and the court can intend nothing but what
E. Jcnks andal. is found by the jury. This remark is an anfwer to much o(
'• the reafoning on both fides, and narrows the grounds of difcuf
R. 0. riaiict 1 * 11 • •
and w. Bowne. fion to the following points:
1 ft. Whether the vefiel 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 paflport from one of the belligerent nations?
2d. Whether the purchafe of the cargo in a French port was within the prohibition of the aft of Congrefs of the 13th June 1798, and an illegal trade.
As to the firft, it appears that the Nancy failed with the ufual documents of an American vefiel, and was in every refpect entitled to be confidered as fuch, unlefs the French paf£. port which fhe received at St. Domingo would deprive her of that privilege. The general rule by which to determine the national character of a vefiel is the domicil of the owner. In the prefent cafe the owners refided in the ftate of RhodeIfland—We admit the exception to this rule where the vefiel navigates under the flag or affumed character of a country to which fhe does not belong—but the inftance before us we ap-» prehend is not the cafe of a vefiel failing under that protection, or, as it is termed by Sir William Scott, under the pafs 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 fhe profeflcd no other than the American character. The additional paper which fhe received on board at the Cape, according to its import, was not inconfiftent with that character; on the contrary fhe was therein ftated to be the property of Mr. Jenks, merchant at Providence, ftate of Rhode-Ifland; that paper, accompanied with the other do-« cuments fhe poffcffed, could not be evidence of her being French property, or employed as a French vefiel: 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 themfelves againft the cruifers of the power whofe 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
mttrrcourfe had been prohibited by our government at that NEW-YOfcK, period with the French nation, we think it afforded a reafon- M*y l8o3able ground of fufpicion that fhe was employed in the fervice E. 1^ w&aL of the French and perhaps the rifle was thereby enhanced, but v
fo far as that fact was material, the prohibition was known to and \v\ Bowne. the underwriters before they fubferibed the policy, and they » r-.lift have eftunated the increafed danger, if any, that refulted from it. Of itfelf, we think, it would afford an additional fecuriry againfi one of the belligerent parties, (the French) and could not alone be a caufe of capture, or Sufficient to authorize a detention by any other belligerent. In practice, we believe it is cuftomary for veffels to endeavour to protect themfelves, by papers of this defcription from the public agents of every nation from which they can be obtained, and they have been considered as affording fecurity, inftcad of endangering their neutrality.
In determining the fecond qucftion it is again neceffary to recur to the facts found by the verdict. From them it appears that the veSfel 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 provisions were taken by the French government which prohibited rclading any part of the cargo, and permitted to barter what was left for the produce of the ifland only, and to diSpoSe of it in no other way; if this be true they had no alternative but to comply with the terms prefcribed, or Sacrifice the whole of their property. Their acts Were acts of neceffity and coercion, and the law of Congrefs which fufpended the commercial intercourse with France and her dependencies, cannot rcafonably be conftrued to apply to a cafe of this defcription; its object was to prevent an intentional, of voluntary traffic, and not to compel a Sacrifice of property or inflict a penalty in cafes of diftrefs or neceffity. That would be a construction exceffively fevere, and contrary to the fpif it and intent of the act. On this point we understand a Similar decifion has been made in the Diftrict Court of this State, which on appeal, was affirmed by Judge PatterSon in the Circuit Court of the United States. We arc therefore of opinion, on both points, that the plainly}'!, ate entitled to recover.