Jenks and others against Hallet and Bowne

Jenks and others against Hallet and Bowne. A vessel driven by distress into a French port, where a part of her cargo is taken by the officers of the government, and she prevented from taking away her original lading, may, without incurring the penalties of the acts forbidding all intercourse with the dependencies of France, purchase and load with the produce of the country. A passport granted by any particular government to protect against its own cruisers, is not a sailing under the protection of the flag of that government, so as to stamp a national character on the vessel. On a special verdict the court cannot intend any thing which is not found. This was an action on a policy of insurance. A special verdict was, by consent, found, subject to the opinion of the court, as to the plaintiff’s right to recover, upon the facts contained. From these it appeared, that on the 27th of April, 1799, the defendants, for a premium of 25 per cent., insured for the plaintiffs against all rislcs, 1,000 dollars upon coffee, valued at 20 cents per pound, on board the sloop Nancy, from Hispaniola to St. Thomas. That in the margin of the policy was inserted, “warranted the property of the plaintiffs, all Americans,” but that the words all Americans, were added after the policy was subscribed. That the sloop Nancy was built at Ehode Island, and belonged to citizens of the United States, resident in Ehode Island, as well when she left that state as at the time of her capture, and, being chartered by the plaintiffs, sailed from Newport, in Ehode Island, on the 12th of December, 1798, on her first voyage to the Havannah; that in the course of that voyage she was compelled, being in distress, to put into Cape Frangois, in the island of Hispaniola, a country in the possession of France, where she arrived on the 5th of January, 1799; that the captain and supercargo of the sloop were part owners of the cargo, and are two of the "plaintiffs in this suit; that having so put into [*61] Cape Frangois, the cargo was landed to repair the vessel; that the public officers acting under the French government there, took nearly all the provisions from on board the sloop, but the captain and supercargo were permitted to sell, and did sell, the remainder, to, different persons there; that, for the provisions taken, the captain and supercargo were to be paid in thirty days, which payment was not made; that with the proceeds of the remaining parts of the cargo they purchased the whole of the cargo which was on board at the time of the capture; that the officers forbade the master and supercargo from taking on board the cargo landed from the vessel, or from conveying from the island any specie, in consequence whereof, they were compelled to take the produce of the country in payment ; that the sloop, with 30,000 weight of coffee on board, 25,000 weight of which was intended to be insured by the present policy, sailed from Cape Frangois, on the 23d of February, in the year last aforesaid, on the voyage mentioned in the policy of insurance, having on board the usual documents of an American vessel; that the sloop, in the course of her said voyage, was captured by a British frigate, and carried into the island of Tortola, and vessel 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 sloop, the following paper was found on board: “Liberty, Safe Conduct, Equality. At the Cape, 11th Thermidor, sixth year of the French Republic, one and indivisible. The general of the division and private agent of the Executive Directory at St. Domingo, requests the. officers of the French navy and privateers of the republic, to let pass freely, the American vessel called the master property of Mr. E. Born Jenks, merchant, at Providence, state of Ehode Island, in the United States, arrived from the said place to the Cape Frangois for trade and business. The citizen French [*62] consul, in the place where the said ^vessel shall bo fitted out, is invited to fill with her name, and the captain’s, the blank left on these presents; in attestation of which he will please to set his hand hereupon. (Signed) “ J. Heelouville, (Signed) “Gauthier, “ The General Secretary of the Agency.” That the above paper was received on board the sloop at Cape Frangois, and was on board when she left that place; that the property insured by the policy aforesaid was claimed by Zebedee Hunt, and was condemned by a sentence of the said court of vice-admiralty, in the following words: “that the said sloop Haney, and cargo on board, claimed by the said Zebedee Hunt, are enemies’ property, and as such, or otherwise, liable to confiscation, and, therefore, condemned as good and- lawful prize to the captors.” That the plaintiffs are Americans, and were owners of the property insured, and that the same was duly abandoned to the underwriters. Hamilton and Pendleton, for the defendants. The plaintiffs are not entitled to recover. First, because the warranty is not true. Secondly, because the voyage insured was illegal. On the first point. The sentence states that it is enemy’s property: and even if not, the privilege of neutrality was forfeited, by the part owner’s accepting a passport from another country, and sailing under the protection of that flag. In the case of the Vigilantia, 1 Rob. Ad. Rep. 13, 14, 15, Sir William Scott expressly lays it down, that a vessel, sailing with the pass of a foreign country, shall be deemed of that country whose pass she carries. It cannot be contended that the paper alluded to was a clearance. That, according to 1 Valin, 282, contains “the name of the master, and of the vessel, its tonnage and cargo, the port of departure and destination.” Here blanks are left, and the paper bears date before the arrival of the vessel, showing it was made out for her, on a preconcerted plan of trade and business. On the second point. It is only necessary to look at the dates of the act of Congress and the transactions. The first act was passed in June, 1796, to take effect on the first of July following; the second, on the 9th of February, 1799, to be in force on the 3d of March following: both these acts require a bond to be given not to enter French ports for trade and ^traffic, nor to trade there though [*63] driven in by stress of weather. The Haney sailed the 12th of December, 1798; put into the Cape, January, 1799: sailed on the 23d of February following, and on the 23d of April next the policy was effected: under the acts of Congress, therefore, the selling her cargo was illegal, as even in cases of putting into French ports from distress, trafile is forbidden. Hoffman and Bogart, for the plaintiffs. The jury have expressly found the warranty to be true, and the inconclusiveness of foreign sentences is settled in the cases of Vandenheuvel v. Church, and The Same against The United Insurance Company of New York. This, therefore, is a complete answer to the first objection. But, as the sentence is ambiguous, and assigns 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. 1 Marsh, on Ins. 291,294 Bernardi v. Moteux, Doug. 575. The paper talked of as a pass was merely a clearance and passport to secure against seizure by French vessels: nor can the citation from Valin be supposed to be the obligatory form on all people, according to the positive rule of the law of nations. The second objection is of as little force as the first. The policy was subscribed by the defendants with a full knowledge of the facts and law. Though against a statute prohibiting certain voyages such a circumstance could not prevail, it was expected the un: derwriters would not have made it a ground of defence. The distress, however, and force, which are stated in the special verdict, do away every obstacle to a recovery from the pretended illegality of the voyage. The case of Richardson and others, in the District Court of Mew York, affirmed upon an appeal to the Circuit Court of the United States, was stronger than the present, and is on this head a full exposition of the act of Congress. There a vessel bound to a neutral country was captured, carried into a French port, together with her cargo, condemned and sold; the owner voluntarily purchased at that place another vessel, loaded her with sugar, and came to Mew York; she was seized and libelled under this very act; the judge of the District Court acquitted both vessel and cargo as not within the spirit of the statute. This decision, from its confirmation vn the Circuit Court, is now the law of the union. а) Johnson and Weir v. Ludlow, 1 Caines’ Cas. in Err. 29; Vandenheuvel v. United Ins. Co., 2 Caines’ Cas. in Err. 217; 1 lex Mer. Am. 337, 341. See Vase v. Ball, 1 Lex Mer. Am. 333. [MAJORITY — *Per Curiam.] *Per Curiam. It will be observed that this is the case of a special verdict, and the court can intend nothing but what is found by the jury. This remark is an answer to much of the reasoning on both si lies, and narrows the grounds of discussion to the following points: 1st. Whether the vessel 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 passport 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? As to the first, it appears that the Haney sailed with the usual documents of an American vessel, and was in every respect entitled to be considered as such, unless the French passport which she received at St: Domingo would deprive her of that privilege. The general rule by which to determine the national character of a vessel is the domicil of the owner. In the present case the owners resided in the state of Ehode Island. We admit the exception to this rule where the vessel navigates under the flag or assumed character of a country to which she does not belong; but the instance before us, we apprehend, is not the case of a vessel sailing 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 question; she was in fact American, if we believe the verdict, and she professed no other than the American character. The additional paper which she received on board at the Cape, according to its import, was not inconsistent with that character ; on the contrary, she was therein stated to be the property of Mr. Jenks, merchant at Providence, state of Ehode Island; that paper, accompanied with the other documents she possessed, could not be evidence of her being French property, or employed as a French vessel; she had come from a French port, and was destined to a Dutch Island, both of which were lawful; and it was natural, and. we believe is usual, in such cases, for vessels to seek for protection, and guard themselves against the cruisers of the power whose ports they have visited. This paper, unsupported by other evidence of belligerent property or employment, could be received in that light only. Con-[*65] nected with the fact that all ^intercourse had been prohibited by our government at that period with the French nation, we think it afforded a reasonable ground of suspicion that she was employed in the service of the French, and perhaps the risk was thereby enhanced; but, so far as that fact was material, the prohibition was known to the underwriters before they subscribed the policy, and they must have estimated the increased danger, if any, that resulted from it. Of itself, we think, it would afford an additional security against one of the belligerent parties, (the French,) and could not alone be a cause of capture, or sufficient to authorize a detention by any other belligerent. In practice, we believe it is customary for vessels to endeavor to protect themselves, by papers of this description from the public agents of every nation from which they can be obtained, and they have been considered as affording security, instead of endangering their neutrality. In determining the second question it is again neces sary to recur to the facts found by the verdict. From them it appears that the vessel was compelled to put into the Cape in distress; that when there the cargo was landed for the purpose of repairing her; that nearly all the provisions 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 dispose of it in no other way; if this be true, they had no alternative but to comply with the terms prescribed, or sacrifice the whole of their property. Their acts were acts of necessity and coercion, and the law of congress which suspended the commercial intercourse with France and her dependencies, cannot reasonably be construed to apply to a case of this description; its object was to prevent an inten tional or voluntary traffic, and not to compel a sacrifice of property, or inflict a penalty in cases of distress or necessity That would be a construction excessively severe, and contrary to the spirit and intent of the act. On this point we understand a similar decision has been made in the district court of this state, which, on appeal, was affirmed by Judge Paterson in the Circuit Court of the United States. We are, therefore, of opinion, on both points, that the plaintiffs are entitled to recover, Judgment for the plaintiffs. Seward v. Jackson, 8 Cow. 406; Birckhead v. Brown, 5 Hill, 634 Sue Blagge v. New York Ins. Co., post, 564. Therefore, a certificate of origin from a French consul, is no breach of the warranty of American property. Le Roy v. United Ins. Co., 7 Johns. Rep. 343. Judgment affirmed in the court of errors, (1 Caines’ Cas. in Error, 47,) end in the supreme court of the United States, (3 Cranch, 219.)