Vasse v. Ball

[Per Shippen, J. On the authority of this case I acquitted a vessel from Rotterdam, which was seized by the collector of the customs, while I sat as judge of the Vice Admiralty Court of Pennsylvania.] A policy on goods means only such as are merchantable and a part of the cargo. Park. 23. Indeed this matter appears evident from the admiralty proceedings ; for neither the household furniture nor baggage are included in this bill of appraisement, which enumerates particularly all the articles of the cargo. . On the last point,' it was suggested, that the wording of the warranty in the policy filled up by the defendant’s order, seemingly differed from the original agreement of the parties : — but this was not insisted on further than that the latter should be considered as illustrative of the former. The counsel observed, that it was painful to reflect that some of the late decrees of the British courts of admiralty in the West Indies, were governed more by reasons of state policy and royal instructions, than by the laws of nations. Even the opinions of the courts of Westminster are uot always uniform. Lord Mansfield held that insurance might lawfully be made on enemy’s property. Park. 276. But Lord Kenyon has since determined that an action will not lie, either by or in favor of an a lien enemy. 6 Term Rep. 23. Park. (3d edit.) 239. The maritime law is not the law of a particular country, but of the general law of nations. 2 Burr. 887. Lofft. 639. The writings of learned men in other countries are equally evidence of the maritime law, with the British books, and will be regarded as such in this court. Emerigon stands high as a.n authority, and he lays it down, that underwriters are answerable, notwithstanding the unjust decisions of foreign admiralty courts, which would have no effect on French policies; and cites two instances wherein this point was so determined. 1 Erner. 457, § 20. But it is contended that the present case is within the true spirit of the British resolutions. Policies are not to be construed according to the apices juris, but for the benefit of trade and the insured. 1 Burr. 349. They are not confined to the precise words, 2 Stra. 1250, but shall be construed according to the usage of trade. Cowp. 601. Park. (3d edit.) 392. [183] In Bernard v. Motteux, Doug. 554, already cited the court determined, that the French decree being equivocal, and not clearly ascertaining that the condemnation was had on the ground of the vessel’s being enemy’s property, a recovery was had against the underwriter, the same ambiguity occurs here. — Though a vessel be condemned as prize, yet if the grounds of the sentence appear manifestly to contradict the conclusion that she was not neutral, the court will not discharge the underwriters, by declaring that the insured has forfeited his neutrality. Park. 415. The four last charges in the libel are inconsistent with the first. If the brig and cargo were bona fide French property, it was idle to state the vessel to be a transport of flour, stores or soldiers, or that she had committed hostilities against the British nation. To consider her as real French property, and at the same time as adopted French property, by trading at Port de Paix while blockaded by the British, is a solecism. The latter charges therefore evidently consider as a neutral vessel violating the law of nations, and consequently liable to confiscation ; and this opinion the judge must have entertained, notwithstanding the generality of the expressions of his decree, if the depositions taken in the admiralty are in the least attended to. If tlio ground of decision appears to be a foreign ordinance, manifestly unjust and contrary to the laws of nations, and tho insured has only infringed sucha partial law, it is no breach of the warranty, so as to discharge the insurer. Park. 414. It is clear, that this is sui generis. The circumstances attending it would form an exception to general rules respecting policies, if any such existed to obstruct the plaintiff’s recovery. He knew liis vessel was captured as prize, and carried into Bermuda. On the very day he received this inteligence from his captain, he communicated it to tho defendant. For the safety of his property, he surmounts the common premium near 1700 dollars. What could the contracting parties mean by their agreement, but an insurance against the risk of the judge’s condemnation, though the property should be clearly neutral ? What other hazard was to be run ? The capture had taken place. The owner warranted the brig and cargo to be Americans, of which there cannot be a shadow of doubt. The underwriter indemnified him against the casualty of the Bermuda Court of Admiralty, believing that the appointmentof a new governor would be succeeded by a new train of judicial decisions, and that the piracies under form of law, which the Americans had experienced, would terminate. He looked however foward to the event of a condemnation, and required in such case [184] the earliest information, in order to institute his appeal for redress. Messrs. Ingersoll, Rawle, and Du Ponceau, pro quer. Messrs. Lewis, and Tilgham, pro def, The court in their charge to the jury, observed, that the first exception taken by the defendant, had been abandoned, the testimony not warranting it. A concealment of the truth would certainly vitiate the policy. If credit was given to the plaintiff’s witness, every difficulty of this nature would be obviated. Indeed, when the defendant knew of the letter received from the captain, he was put on his guard; and as it lay in his power to procure the proper intelligence, the duty of information devolved on himself. When'the administration of justice is pure, a small matter of dutiable or’prohibited goods, will not condemn a vessel in the course of trade. But the effects of the French passengers were not the ground of the decree, having neither been appraised nor sold as part of the cargo. On the face of the decree it is objected, that all the charges in the libel are declared to be true. But it has been properly observed, that the first charge is incompatible with all the rest. The four last proceed on the supposition that the brig, though neutral property, was engaged in different services prohibited to vessels of a neutral character, and thereby incurred a forfeiture. We will not suppose the judge guilty of so palpable an inconsistencey as to have founded his sentence on all the charges, or to have condemned without proof. We know with certainty that the condemnation is not specified as enemy’s property, and that such conclusion would contradict the whole proceedings. Considering the sentence as ambiguous on this head, we have clearly a right to go into the examination, whether the brig and cargo were American property; and on the proofs adduced to us, no question whatever can remain, but that the whole was bona fide American property, excepting the trifling household furniture and baggage of the French passengers. And we moreover fully agree with the counsel, that the risk intended to be insured against, was the condemnation of the property in the admiralty, in case it was really American, according to the true agreement of the contracting parties. Yerdict pro quer. for 27,233 dolls, 96 cents, and 6 cents costs. The counsel for the defendant, afterwards moved for a rule to show cause why a new trial should not be had ;■ but the court on argument, unanimously refused the rule. [185] [A bill of exception was afterwards taken to the charge of the court, and the cause was removed to the High Court of Errors and Appeals by Avrit of error. The court after argument, unanimously affirmed the judgment. July Term 1797.]