text:
    Morgan et al. v. Insurance Company of North America.

      Insv/ranoe of freight.

    Where a vessel sails upon a lawful voyage, but on her arrival at the port of destination, finds the same in the possession of another foreign power, and is prohibited from landing her cargo, the freight is earned; and there can be no recovery against the insurers thereof.
    This was an action upon a yolicy of insurance, on the freight of the brig Amazon, valued at $3500, upon a voyage from Philadelphia to Surinam. The policy contained a warranty of American property, and the usual clause against illicit trade.
    On the trial of the cause, before the Chief Justice, at nisi prius, in July 1806, it appeared that upon the 7th of August 1799, when Surinam was in possession of the Dutch, the vessel sailed on the voyage insured, and arrived at the river of Surinam, on the 17th of September following ; that the brig was detained at the entrance of the river, by the commander of the British fort, who informed the master, that the colony of Surinam had been in possession of the British forces about twenty days; that the master, and a passenger of the name of J. G. Richter (who was an inhabitant of Surinam, and to whom the cargo was delivered there, on his paying $25,310, in pursuance of a contract with the plaintiffs, Morgan and Price) proceeded to the town of Paramanto, and the cargo was there tendered and agreed to be accepted by Richter, who gave security for paying the stipulated price, as soon as possible after the delivery, in conformity to the contract. On the 19th of September, the governor of the colony gave permission for the brig to be brought up to town, where she, accordingly, arrived the next day, for the purpose of discharging her cargo ; that on reporting, however, to the customhouse, the collector declared that he would not permit any article to be landed, excepting the provisions (which did not amount to more than one-eighth of the cargo), and that permission to land the cargo generally, was repeatedly solicited by the master, but refused by the governor; in consequence of which, it was brought back to ^Philadelphia. Upon these facts, related in the master’s protest, the plaintiffs abandoned, and claimed for a total loss of the freight insured. And it was agreed to state them in a case, for the opinion of the court.
    The general question was, whether the plaintiffs were entitled to recover, either for a total, or for a partial, loss of freight ? And the solution was considered, by the counsel on both sides, as depending upon the inquiry, whether the freight had been earned, in whole or in part; and if not, whether the loss was occasioned by a peril enumerated in the policy.
    For the plaintiff

    — By the bill of lading, the master is obliged to deliver the goods (the danger of the seas only excepted), and freight is only payable on the delivery. Beawes Lex Merc. 137; Jud. 179, 183. If a foreign government prevents a landing of the cargo, it prevents an earning of the freight by an arrest, restraint and detainment; as much, surely, in the decided case, of the foreign government refusing to permit a cargo to be shipped for which the vessel was sent. 3 Bos. & Pul. 295; 8 T. R. 267; 1 Brownl. 21; 7 T. R. 385; Abbot 261; 3 Bac. 610; Lex Merc. 267; Park 292; 3 Rob. 152-3; 7 T. R. 383; 2 Vern. 170; Perots. Penrose, in Supreme Court of Pennsylvania. A policy on goods continues in force, until the goods are landed (1 Marsh. 162), and all policies should be liberally construed, for the benefit of trade. (Ibid. 164-5.) In the present case, there is no proof of the delivery of the cargo at Surinam; but, on the contrary, it appears, that Richter agreed to pay for it as soon as possible after it was delivered; and as the delivery depended upon the landing, it is virtually disproved by the evidence, that the governor always refused to grant a permit for the landing.
    For the defendant.

    — On the evidence, there was an arrival of the vessel at her port of discharge ; and the tender and acceptance of the delivery of the cargo, entitled the owner to his freight. The owner of the ship was not bound to procure a permission to land the goods. Besides, it is not denied, that seamen’s wages were paid ; and wages are never payable, but in cases where the freight is earned. But even the loss, if established, was not occasioned by peril insured against. There was no arrest, no restraint, no detainment; but merely the refusal of a right of entry. Ord. Louis XIV.; 1 Val. 656, art. 15; Ib. 626, art. 7; Doug. 622, 626-7; Poth. 60, § 69 , 2 Marsh. 434-7; 1 Ibid. 162, 164-5; Abbot 161; 2 Burr. 887.

         When the protest was offered to be read, the defendant’s counsel observed, that the circuit court of the United States had refused to admit the protest in evidence, and submitted the competency of such evidence on the present occasion. But by The Court. — The practice of Pennsylania has been long settled : the protest has invariably been received as evidence in the state courts.

   *The Chief Justice delivered the following opinion, in which Brackenridge, Justice, concurred :

Tilghman, Chief Justice.

— This is an action on a policy of insurance on freight of the brig Amazon, from Philadelphia to Surinam, valued at $3500. The brig sailed from Philadelphia on the 7th of August 1799, with a cargo consisting of provisions and merchandise, and arrived in the river Surinam, on the 17th of September following. During the voyage, the colony of Surinam was conquered by tbe forces of tbe king of Great Britain. Permission was obtained from the British commander, for the brig to. go up to the town of Paramanto, and she arrived there with her cargo, on the 20th September. On her arrival, the master of the brig, in pursuance of instructions from the owners, as well as in pursuance of an agreement between the owners and a certain J. A. Richter, who was a passenger in the said brig, offered to deliver the cargo to the said Richter, upon his paying, or giving security to pay, $25,310. Richter agreed to pay that sum, as soon as possible after the delivery of the cargo, and actually gave good security for the money. But the British collector of the customs, refused permission to land any article of the cargo, except the provisions, nor could such permission be obtained, although repeated petitions were presented to the government. The consequence was, that the cargo was not landed, and the master entered his protest. The brig remained at Paramanto until the 27th of September-. The plaintiffs’ were owners both of the brig and cargo. The question is, whether the plaintiffs are entitled to recover, either for a total loss, or for a partial loss, on this policy ?

The plaintiffs’ counsel contend, that they are entitled to recover for a total loss ; that the landing and delivery of the cargo is an essential part of the contract between the owner and freighter, and not being complied with, no part of the freight has been earned ; and that the circumstance of the same persons being owners of the brig and cargo, is immaterial, in a question between the insurers and assured. On the other hand, the defendants’ counsel say, that there has been no loss, because the freight was completely earned.

No adjudged case in point has been cited on either side. The defendants’ counsel relied on the case of Blight v. Page, 3 Bos. & Pul. 295 n., but 1 do not think that case applicable. The owner of a vessel agreed to go to a certain port, and take in a cargo of barley, to be carried on freight. When the vessel arrived at the port, the defendant could not furnish the cargo according to his agreement, because the government refused to permit the exportation of barley. The owner sued the defendant for not complying with his contract, and recovered damages equal to the amount of the freight. This only shows, that the interference of the government did not excuse the defendant from complying *with his contract. The plaintiff had r* done everything necessary on his part, and was prevented from earn- L ing his freight, by the breach of contract on the part of the defendant. No conclusion can be drawn from this case, under what circumstances freight may be earned, or not earned. For it was not an action for the recovery of freight, but of damages for not being permitted to earn freight.

But although there is no adjudged case, the subject has not escaped the notice of writers on the marine law. In one of the ordinances of Louis XIV. (A. D. 1681), it is declared, that on a charter-party to carry goods out and in, if, during the voyage, the commerce is prohibited and the vessel returns, the outward freight only is earned ; and Valin, in his commentary on this article, says, the law is the same, if the vessel is freighted outward only. These ordinances, and the commentaries on them, have been received with great respect, in the courts both of England and the United States ; not as containing any authority in themselves, but as evidence of the general marine law. Where they are contradicted by judicial decisions in our own country, they are not to be respected ; but on points which have not been decided, they are worthy of great consideration. I- am strongly inclined to adopt the rule laid down by Yalin, because I think it reasonable. The owner of the ship has been in no fault whatever ; when he took the goods on freight, there was an open commerce between Philadelphia and Surinam; the goods were carried to the port of delivery ; the vessel waited there seven days, and the master offered to deliver- the cargo to the consignee, who refused to receive it. Nothing prevented it but the prohibition of the British government. It is not like the case of a vessel which is prevented from entering the port of delivery, by a blockading squadron ; for there the voyage is not performed, and it is impossible to say, certainly, that it would have been safely performed, if there had been no blockade. I think it most agreeable to reason and justice, that the obtaining permission to land the cargo, should, in this case, be considered as the business of the consignee. That being established, it follows, that the freight was earned.

Upon the whole of this case, I am of opinion, that the plaintiffs are not entitled to recover, either for a total or a partial'loss.

         1 Vol. Ord. Louis XIV. 656, Art. 15, title Freight, cited by Abbot.


source: Caselaw Access Project

author: Tilghman, Chief Justice.

license: Public Domain

text:
    *Sansom v. Ball.

      Insurable interest. — General a/oerage.

    Freight advanced, in consideration of which, the person making the ■ advances, acquires a right to a certain proportion of the tonnage, is an insurable interest.
    Where salvage is decreed, on a re-capture, and the vessel is restored, on payment of a sum of money, by way of compromise with the re-eaptors, this is matter of general average, to which underwriters on “ freight advanced,” must contribute.
    Case, on a policy of insurance, upon the freight of the ship Richmond, for a voyage at and from Philadelphia to Batavia, and thence back again. The premium was twenty per cent., “ to return five per cent., if the ship proceeds only to Batavia and back to Philadelphia, and no loss happens ; ” and the insurance was declared to-be “on freight advanced, here, and which, by agreement, is valued at $13,500.” The policy also contained the usual clause, that there should be no average loss recovered, if less than five per cent., unless it was general.
    On the-trial of the cause, it appeared, that the Richmond was owned, by Messrs. Jesse and Robert Wain ; that the plaintiff purchased from the owners three-eighths of the tonnage of the ship, for the voyage, at the price of $10,837.50, which was paid before the ship sailed ; that the Richmond proceeded safely to Batavia, but on her return thence to Philadelphia, she was captured by a French privateer, who ordered her to Guadaloupe, and she was afterwards retaken.by a.British ship of war, who carried her.into Martinique; that upon a libel for salvage, at Martinique, one-half of the full value of the ship and cargo was decreed to the re-captors, and the claimants charged with all costs ; and that by agreement between the master and the supercargo, on the one hand, and the re-captors, on the other, one-half of the cargo was specifically delivered to the latter, and 2750?. fixed for-the salvage on tbe ship, which was paid by a draft on the owners at Philadelphia, secured by an hypothecation.
    The present suit was brought -to recover an average loss ; and the case being submitted for the opinion of the court, two questions were disoussed : 1st. Whether the subject described in the policy was an insurable inter est ? 2d. Whether, under all the circumstances of the case, the insurers were liable for a general average ?

    1st. The plaintiff’s counsel, contending that the interest was insurable, irged : 1st. That it was a lawful interest. 'It is the payment of a sum of money, for the benefit of bringing home a return-cargo, either as owner, or upon freight. There is no general law, no law of America or of England, against the payment of freight in advance, whatever may be the law of bTance (2 Marsh. 644) ; and there is scarcely a subject of property, pc.™ for which *a price is paid and received, that may not be the subject of *• insurance, unless where general policy forbids ; as in the case of seamen’s wages. Park 9 (5th edit.) ; Tb. 103. Nor can this be considered as a double insurance ; for it is a distinct interest; and different insurances may be effected by different persons, having different rights, in the same property. 1 Marsh. 282 ; Park 103. Nor is it a loan upon bottomry ; for it was not advanced on the pledge of the ship herself, but for the use of her tonnage ; and it is immaterial, that the valuation in the policy exceeds the actual cost; as the plaintiff had a right to cover the premium, charges, interest and profit, as well as his advance. 2d. The interest insured was liable to hazard and loss ; and-therefore, it was insurable. If the ship had been totally lost, the plaintiff’s use of the tonnage, for which he had paid, was.gone, and the owner of the ship could not be compelled to refund. 3d. The interest is well described in the policy. It is not a purchase of a share in the vessel ; but of a right to convey goods in her, upon the voyage insured ; and the transaction does not violate the registering act, on the point of ownership (1 U. S. Stat. 294, § 14) ; or even on the supposition of its amounting to a sale of a part of the vessel, -it only forfeits the American privileges ; it does not affect the insurable quality of the interest acquired. But again, when it is objected, that none but the owners of a ship can recover upon an insurance of freight; the objection obviously arises from confounding the purchase of the right of freight, paid in advance, with freight to be earned and received, at the end of the voyage. It is clear, that the owners of the ship could not insure (and certainly they did not attempt it) as freight, the tonnage purchased by the plaintiff. And when the plaintiff proposed the insurance, the .intention of the .parties, according to the facts disclosed, without objection at the time, ought to govern the construction of the policy. Park 439, 4th edit.
    2d. On the second point, the plaintiff’s counsel insisted, that Whether the salvage was considered as freight, or as a charge upon goods, the interest insured was liable to a general average ; and, if so, the underwriters on the present policy were bound to furnish an indemnity. Ship, freight and cargo contribute to general average. Park 121; Abbot 215 (Am. Edit.); 1 East 220. If it is essential to a general average, that the loss should be voluntarily incurred surely the payment of salvage, upon a re-capture, is an act as voluntary, as throwing goods into the sea, upon the coercion of a tempest. Nay, it is within the express stipulation of the policy, that the assured shall labor to recover the property from any jeopardy, in which it is involved, by a risk insured against. Park 140-1, 123; Abbot 218; 2 Burr. 1213; 1 Mag. 245; 1 Rob. 86. And if ship, freight and goods should all contribute to a general average, the plaintiff’s interest in the use of the i ship could only contribute in this way; and contributing at all, is -* entitled *to an indemnity. 2 Marsh. 460; Park 124-6 (4th Edit); Abbot 290-1.
    1st. The defendant's counsel, contending that the interest was not insurable, argued, that it was in the nature of bottomry ; and therefore, not insurable, unless specifically ; and even then, there could be no recovery for an average, but only for a total loss; that the idea of freight is inseparable from a completion of the voyage, and none but the owner of the ship can recover freight; and that there is no instance of a person, who is merely liable to pay freight, being liable to contribute to the payment of a general average. Abbot 179; 2 Bos. & Pul. 321-2; Marsh. 644; 1 Ibid. 93. If the purchase is considered a purchase of part of the vessel, then no legitimate contract can be founded on it, unless the vessel is registered anew. (1 U. S. Stat. 294, § 14.)
    2d. On the second point, the defendant’s counsel contended, that the decree of the court only affected the ship and cargo (not the freight) with the payment of salvage; that nothing but a general average can affect freight; and a general average calls for a voluntary sacrifice of a part, to preserve the rest of the property; whereas, the loss on the salvage was compulsory. (1 Johns. 406, 410; Abbot 220; Park 122, 130.)

       Mr. Fitzsimmons, a merchant and underwriter of great intelligence and experience, proved, at the trial of the cause, that the interest acquired by the plaintiff in the tonnage of the ship, was a well-known subject of insurance in Philadelphia. He also proved that an adjustment of the average loss, on the present voyage, had been made; in which the insurance companies, and most of the private underwriters, had acquiesced. On the effect of the adjustment, the plaintiffs cited Park 118; Marsh. 244.

   The chief justice, after stating the general facts, delivered the unanimous opinion of the court, in the following terms :

Tilghman, Chief Justice.

— In this case, two questions have been made : 1st. Had the plaintiff an insurable interest ? 2d. If it was insurable, was it liable to a general average ?

I. In order to determine whether the plaintiff’s interest was insurable, we must first ascertain the nature of it. It seems to be a kind of interest, not much known in Europe, though well known in this city. The plaintiff advanced a sum of money to the owners of the ship, in consideration of which they gave him a right to fill up three-eighths of the tonnage of the ship, for that voyage, with goods, either his own or the property of others. It is called in the policy “freight advanced,” an expression well calculated to show its meaning. All countries, and even all cities, have singularities of expression. All new inventions, either in commerce or the arts, give rise to new modes of speech, which, when once introduced into contracts, are recognised by courts of justice, whose duty it is to carry into execution the intention of the contracting parties. Now, what is there in this interest, which should exclude it from the benefit of insurance ? there is nothing unlawful in it. It is subject to loss ; for whether the plaintiff used the tonnage for the transportation of his own goods, or of the goods of others, he would lose his money, unless the ship performed the voyage in safety. Indeed, I think Mr. Ingersoll, in *arguing for the defendant, con- r* ceded that the plaintiff’s interest might have been insured, if it had *■ been properly described; but he conceived it to be in the nature of bottomry. This it certainly cannot be ; there was no loan of money. Messrs. Wains were obliged to make no payment to the plaintiff, but the plaintiff was entitled to make what he could from the tonnage he had purchased. Whether it was more or less, Messrs. Wains had nothing to do with it. The* testimony of Mr. Fitzsimmons goes far towards proving, that the plaintiff’s interest was well described, and was a proper object of insurance. In the case of Gregory v. Christie (Park 11), my Lord Mansfield thus expresses himself : “ I should think that the words ‘ goods, specie and effects,’ did not extend to the plaintiff’s interest, if we were only to consider the words by themselves. But here is an express usage, which must govern our decision. A great many captains in the East India service swear, that this kind of interest is always insured in this way.” Now, though there have not been a great many witnesses in this cause, yet there has been one, very much conversant in the business of insurance, who stands uncontradicted. Upon this first point, therefore, the insurability of the plaintiff’s interest, whether it is considered on principle, or on usage, I have no doubt, but the law is with the plaintiff.

II. But was the plaintiff’s interest liable to general average ? General average, or general contribution, is founded on principles of justice and sound policy. It arises, when a sacrifice of part has been made for the preservation of the residue, or when money is expended, to preserve the whole. Thus, the loss occasioned by cutting away of masts, or throwing goods overboard, to lighten the ship in a storm, or money paid to redeem ship and cargo, which had been captured, are subjects of general average; ship, cargo and freight have been benefited, and therefore, all must contribute. In the present instance, a compromise was made with the re-captors. Was it for the benefit of all persons concerned in ship, cargo and freight ? for if it was, it falls within the rule of general average. It appears to me, that it was for the benefit of all concerned. It prevented a sale of both ship and cargo, which must have injured all concerned. It would certainly have injured the plaintiff, who had goods on board to a large amount, and he had paid in advance, for the freight of these goods. Of whatever nature the plaintiff’s interest was, it was liable to salvage. Sir William Scott’s opinion is, that salvage is due, for ship, cargo and freight. But the defendant’s counsel object, that general average never arises but from the voluntary act of man, and here, say they, was no voluntary act; for salvage was decreed by the court. This argument is rather too refined. Let us consider it. It is true, that the agency and consent of man must intervene, to prod ice a general average ; but this agency and consent, though in one sense voluntary, are upon the whole, involuntary. When life is at stake, the mariner will- p^gg ingly *throws gold and diamonds into the sea. But was he willing L io encounter the storm, which produced this dire necessity ? General average always arises from actions produced by necessity. In the case before us, there was a capture, re-capture, and decree of salvage. The master and supercargo consented, under these circumstances, to a measure, which produced a general benefit. They surely exercised as much volition, as if they had thrown half the cargo overboard in a storm. Suppose, they had stood still, and suffered the ship and cargo to be sold, the underwriters would then have had to -answer for the whole freight: it it better for them to be subject to a general contribution.

Lewis, Rawle and J. Sergeant, for the plaintiff. McKean (Attorney-General) and Ingersoll, for the defendant.

We are of opinion, that the plaintiff is entitled to recover on this poliey, according to his demand.

       The Racehorse, 3 Rob. 86.


text:
    Donath et al. v. Insurance Company of North America.

      Partial loss. — Return of premium.

    Where an agent insures on account of his principal, though really for his own protection, there can be no recovery for a total loss, after a capture and restitution — the principal having accepted the property not lost or damaged; the loss, in such case, is but a partial one.
    There can be no claim for return of premium, where the risk has once commenced, and the voy age is entire; otherwise, where the voyage is divided into parts, and on one of them, no risk has been run.
    This cause was argued in March term last, on the following case stated for the opinion of the court.

    Case. The plaintiffs were in advance for money lent, and goods delivered, to Don Alvarez Calderon, according to their account stated (including commission's and premium of insurance), to the amount of $13,750 ; and addressed to the defendants, the orders of insurance, dated respectively the 22d of June, and 6th of July 1799, in these words :
    “ Philadelphia, June 22d, 1799.
    “ President and Directors of the Insurance Company of North America.

      “ Gentlemen. — Agreeably to your answer, we request you to insure $13,750 on sundry effects, shipped on board the schooner Daphne, captain Ripley, bound for Havana. This insurance is declared to be made by us, for and in behalf of Don Alvarez Calderon, king’s attorney in the island of Cuba, on goods, or rather effects, they not being merchandise intended for trade, but wholly his property, consisting in clothing and wearing apparel, library, a vast quantity of house-furniture, coaches, &c., amounting together to $18,733, of which we only cover the above sum of $13,750, the same being the amount of our advances, inclusive of premium, commission, &c., at and from Philadelphia to Havana, on board *the Daphne, an American bottom and property, and the returns from Havana to Philadelphia on board the same schooner, or any other American vessel, but if remittance should be made to us in bills of exchange, for the whole or in part of the sum so insured by us, a return-premium of seven and a half per cent. shall be allowed us, on the amount that may be remitted in bills. We further warrant that Don Alvarez Calderon has all necessary passports and protections for himself, suite and property, from the British, Spanish and French ministers, which we have caused to .he registered in Clement Biddle’s office.”
    “Philadelphia, July 6th, 1799.
    “President and Directors of the Insurance Company of North America.
    “ Gentlemen — Please to cancel the policy of insurance effected on goods or effects, shipped by us, on board the schooner Daphne, for account of Don Alvarez Calderon, for $18,750, as the same have been re-landed and loaded on board the brig Currier, captain McKeiver, on which you will please to transport the same insurance, and on the same conditions.
    Jos. Donath & Co.”
    Previously to these orders, the plaintiffs had entered into an agreement with Don Alvarez Calderon, dated the 11th day of June 1799, of which the material passages were these :
    “ The said Jos. Donath & Go. contract to furnish a suitable vessel for the passage of the said Don Andres Alvarez Calderon, his suite, and goods and effects, from this port of Philadelphia to Havana. To procure insurance to be made of the goods and effects of the said Don Andres Alvarez Calderon, for the said voyage, to the amount of commissions, premium and charges, and the said goods and effects inclusive, and to comprehend in like manner the sums of $2000, advanced him by Stephen Dutilh, such insurance to be made at and from Philadelphia to Havana, and at and from thence back to this port of Philadelphia, and the policies of insurance, and authority to recover the same, in case of loss, to remain and be vested in the said Joseph Donath & Co.
    “ And the said Andres Alvarez Calderon further covenants, promises and obliges himself to the said Joseph Donath & Go., to pay to the said Joseph Donath & Co., or their correspondent at Havana, the full amount of said sums to be by them advanced, and also for the freight and other sums to be by him paid as aforesaid at Havana, in specie, to be loaded on board any vessel at Havana that they may require, clear of duties or risk; or at the option of said Andres Alvarez Calderon, to pay the said amount in sugars, or other ^produce, in which last case, all the freight, charges, com- p missions at Havana, and risk of the said sugars or other produce of L the said island of Cuba, shall be at the charge of the said Andres Alvarez Calderon, so that the net proceeds thereof, after deducting all charges, freight and insurance, as the same shall produce at Philadelphia, shall be to the credit of said Andres Alvarez Calderon, instead of the sum paid at Havana in specie. And it is declared and agreed by the said parties hereunto, that in case the said vessel should' be captured, taken or lost on her said voyage, that the insurance to be recovered on the goods and effects, to be shipped and insured as mentioned in the third article before mentioned, shall be applied by the said Joseph Donath & Co., to the discharge of their advances, and in abatement or acquittance for so much of the bills or drafts to be drawn by the said Don Andres Alvarez Calderon for the said sums, so to be paid and advanced for his use by the said Joseph Donath & Co., as aforesaid.”

      On tbe 6th day of July 1799, Joseph Ball duly underwrote the policy for the defendants, and affixed their corporate seal, by which they insured goods on board the Currier outwards, and on board her, or any other good American vessel home, at and from Philadelphia to the Havana and back to Philadelphia, valued at $13,750, for a premium of twenty per cent. The property out was warranted to belong to Don Alvarez Calderon ; and that he had all necessary passports and protections for himself, suite and property, from the British, Spanish and French ministers, resident in the United States. Tt was also stated in the policy, that the property homewards was lobe shipped by Don Alvarez Calderon, or by his order, for account of the plaintiff ; but if the remittance was made in bills of exchange, and not goods, there should be a return of seven and a half per cent, of the premium. The premium was duly paid ; the warranty in the policy contained was complied with and performed ; the policy has always remained in the possession of the plaintiffs ; and the goods were shipped and consigned, as specified in the invoice and bill of lading, to wit, by Joseph Donath & Co. “for Don Alvarez, to Peter Blain, or his assigns,” at the Havana. On the 19th June, and 8th July 1799, the plaintiffs wrote two letters to Peter Blain, the plaintiffs’ agent named in the bill of lading, inclosing a copy of the contract with Don Calderon, and desiring him to secure payment before the goods were delivered ; to which letters they received answers, dated respectively the 18th and 31st of October 1799, stating the refusal of Don Calderon to pay the drafts, and his desire that the plaintiffs would seek redress from the underwriters. The brig Currier, in the policy named, sailed from Philadelphia, on the 10th of July 1799, on the voyage insured, with the property insured on board ; and while lawfully prosecuting the voyage, to wit, on the 31st of *4G6i Jul7 she was captured by the British privateer *schooner Char- -* lotte, Captain Thrift, and carried into New Providence, on the 3d day of August ensuing, where James McKeiver, master of the said brig, entered a protest. The brig and cargo were libelled in the vice-admiralty court, at New Providence, and were both condemned, except the property in the policy insured, touching which the following proceedings were had at New Providence.
    On the 26th of August 1799, Don Calderon petitioned the court of vice-admiralty, stating that he was possessed of passports from the British minister, &o., and praying restitution of his effects. On the 2d of September, the judge pronounced sentence, which, so far as it relates to the present question, expressed a doubt upon the construction of the British minister’s passport; and directed an inquiry to be made, whether it was the minister’s intention to protect the effects of Don Calderon, to the extent claimed.  On the 12th of September 1799, all the goods were *restored to Don Calderon, on his giving security to abide the final decree, except a trunk of valuable articles, which had been lost after the capture; and for which the judge refused to make the captors responsible.
    The property received by Don Alvarez Calderon, in consequence of those proceedings, was carried by him to the Havana, but never delivered to the said Blain, in the bill of lading mentioned, nor accounted for to the plaintiffs.
    On the 31st day of August, and the 1st of October 1799, the plaintiffs abandoned the property insured to the defendants, stating in the former letter, particularly, that “ they had received orders from Don Calderon to do so and thereupon, demanded payment for a total loss : which the defendants refused to pay, but offered to pay an average loss on the goods damaged and stolen. Don Alvarez Calderon has not paid to the plaintiffs the whole, or any part of their advances before mentioned : and no property insured on the homeward passage, has been shipped by him or his order, for accourd °f the plaintiffs, nor hath any part of *the remittances in the -1 policy mentioned, been made in bills of exchange.
    The questions for the opinion of the court are : 1st. Whether, under all the circumstances, the plaintiffs had an insurable interest in the property, mentioned in the policy, out and home, or either ? 2d. Whether, if they had such interest, it is sufficiently insured by this policy, to entitle them to recover in the present action, as for a total loss ? 3d. Whether, if they are not entitled to recover as for a total loss, they are entitled to recover as for a partial loss, and to what amount ? 4th. Whether they are entitled to a return of premium on the ret urn-voy age, and to what amount ? It is further agreed, that the judgment of the court shall be rendered by them, in such form and for such sum, if any, as shall be best calculated to effectuate their opinion upon the foregoing questions.
    The cause was argued, in March term, 1806, by Levy and Dallas, for the plaintiffs ; and by Ingersoll and Hopkinson, for the defendants.
    For the plaintiffs,

    it was insisted : 1st. That the advance and lien gave them an insurable interest in the effects of Don Calderon; Park 282; 1 W. Bl. 103; 1 Burr. 489; Park 267, 269; 8 T. R. 154; Park 11; 3 Burr. 1410; Park 270; 8 T. R. 13; 1 Bos. & Pul. 315, 323, 216; 6 T. R. 478, 483; 1 Marsh. 81, 91, 111, 112; 2 Bos. & Pul. 240, 75; that the nature of their interest was fully communicated to the defendants ; that they had taken every precaution to secure the lien, by retaining the possession of the effects, and consigning them to their agent at the Havana, to be delivered to Don Calderon, only upon repayment of the money advanced ; that the capture took from the plaintiffs the possession of the property, and with it, their lien ; thereby constituting a total loss, on which they had a right to abandon (2 Burr. 694; 2 Emerig. 188, 194-5; 3 Poth. lib. 3, c. 3, art. 1, § 3); that the restitution to Don Calderon was not a restitution to the plaintiffs ; but on the contrary, was destructive of their possession and lien ; and that although the goods were, in fact, afterwards carried to the Havana by Don Calderon, they were never delivered at the port of destination, to the consignee of the plaintiffs, within the spirit and meaning of the policy, any more than if they had been carried thither by the captors. 2d. That the defendants have virtually acknowledged the right of the plaintiffs to recover, by offering to pay an average loss upon 'he property damaged and stolen. 3d. That, at all events, the policy contemplates two distinct adventures ; to wit, an outward cargo, and a remittance, either in cargo, or in bills of exchange (providing, in the latter case, for an abatement of seven and *a half per cent, r* premium), and as no risk has been run of either kind, upon the re- *- turn-voyage, there should be a proportional return of premium. Park 367 377-8 (5th edit.); 3 Burr. 1237; 2 Marsh. 564, 567, 569, 561-71; 1 Bos. & Pul. 172.
    For the defendants,

    it was insisted, 1st. That their contract was with Don Calderon, through the agency of the plaintiffs; that the plaintiffs never had an insurable interest, or, if they had, they have not insured it; for the insurance is made on the effects of Don Calderon, on his account and risk; and, although they are consigned to Blain, at the Havana, it is expressly “for Don Calderon” (1 Ld. Raym. 271; 12 Mod. 156); that there was no idea of a lien, in the origin of the transaction, but a perfect reliance on the honor of Calderon; that, although two persons may insure distinct interests in the same subject, it must be upon distinct contracts, for distinct premiums; and that Don Calderon, in case of a legal loss, might have sued on the policy, though he had paid his debt to the plaintiffs; and thus, if they might sue, their debt not being paid, two interests would be insured by the same contract, for a single premium. 2d. That the defendants had complied with their contract, the property being restored to, and remaining in, the possession of its owners, for whom the insurance was made, at its port of destination; and that the insurance was against the perils of the sea, and of war, but it was not an insurance against the misconduct of Don Calderon, in retaining the property, without paying the debt. 3d. That the voyage was entire; for an entire premium of twenty per centum, varying the amount of the premium, but not the entirety of the voyage, acccording to the manner in which the returns should be made. Park 440, 377; 2 Marsh. 572; Doug. 751.

       The case was stated with a reference to the various documents read in evidence; hut it is necessary to incorporate the substance of them here, with the statement

       The opinion of the judge of the court of vice-admiralty (Judge Kelsall), upon the general character and operation of diplomatic passports, appears sufficiently interesting, to justify its insertion at length..
      Decree. “ The only shipment in this vessel, that has occasioned me any hesitation, is that of Don Alvarez. This gentleman is a Spanish subject, but to exempt his property (of the value of eight or ten thousand dollars) from the usual consequence of capture, he has produced a paper, which has given rise to no small argument and discussion. It is a letter of license from his majesty’s ambassador with the American states, Mr. Liston, by which the commanders of vessels of war are requested to allow Don Alvarez to pass, with his domestics, baggage and effects. It is said, that this paper, from its language, not being mandatory, never was designed by Mr. Liston to be viewed as a safe-conduct; that it is merely an expression of civility, a complimentary act, intended to procure to Don Alvarez polite treatment, and to protect himself, servants, baggage, and the customary viatica;, or articles necessary for his use during the voyage, and no more; but by no means to enable him to carry furniture, carriages and other goods, to so great an amount as the property in dispute; that the document is not in the usual and proper form; and finally, the right of ambassadors, to protect by their 3;censes, mere than has been here conceded to them, has been contested, on the ground, that it would defeat the operation of the prize act.
      “ The safe conduct of ambassadors will not, I apprehend, be often the subject of consideration here; and still more rarely will it happen, that there will be any greater occasion to dispute or deny the privilege claimed, than there exists in the present. If, however, the right of ambassadors to grant licenses, whereby enemy, or contraband goods may be protected from capture, during their passage through the sovereign’s dominions (which is the case more especially alluded to by Blackstone, 1 Oom. 259-60), or even to the territories of the enemy, which is the case here, be admitted in its fullest extent; still, it must be granted, that to insure proper respect to his act, attention should be paid to the forms prescribed or recommended by the writers on the law of nations; I mean, as Yattel expresses it, to enumerate and categorically express everything intended to be comprehended. Here, no enumeration has been made; but, instead thereof, a word has been inserted, of an import so general, that it may be construed to include anything and everything, of any amount and of any kind. I may, I trust, without derogating in the least from the respect due to his excellency, the ambassador, be permitted to doubt, whether, when he wrote the passport, he really meant to give it the full purport of which it is susceptible.
      “ The situation of judges of the vice-admiralty courts is well known to Mr. Liston. If, on the one hand, they are bound to respect the right of ambassadors, there are, also, duties to fulfil towards those who claim the benefits of the prize act. And hence, I do conclude', that in extending the privileges or immunities of a passport, beyond what is commonly done, he would have adopted a term of more precise and determinate signification, than the ene he has used. Besides, it is very evident that Mr. Bond, the consul, who, I dare say, did see this license, and who ought, and I presume, does know better than any person here, what the ambassador really intended, takes no notice whatever of ‘ effects,’ but confines his consular license or pass, which he granted eight days subsequent to that of Mr. Liston, to the persons and baggage of Don Alvarez and his servarits. Don Alvarez himself, too, by insuring so carefully against capture, seems to have entertained a different opinion of this safe-conduct at Philadelphia, from that which he holds in this place. I will not, though, take upon me to say, that it is not possible, but that Mr. Liston might have been aware of the purpose to which his passport was intended to be applied; and that he might have deemed this a fit occasion, for the exercise of the extraordinary powers attached to his station and character. If this prove to be the case, I shall dismiss the libel, and leave the captors, if they think themselves aggrieved, to seek redress elsewhere. My duty, therefore, in the first place, is to be satisfied of what was the ambassador’s meaning. Por this purpose, I decree, that an exact enumeration of the articles (exclusive of the baggage, the books, and everything necessary for the prosecution of his voyage, which, if L has not been done, I direct may be immediately given up) that have been shipped by Don Alvarez, be made out, and that it be transmitted to his excellency, the ambassador, with a request mat he would certify to this court, whether any or what things therein specified, were intended by him to be protected from capture by his license. In making this enumeration, I trust, that the greatest care will be used to prevent injury; and that the same ne done in the presence of some person appointed by the claimant.”

       Upon receiving Mr, Liston’s explanatory certificate, the whole of the-property was ordered to be restored absolutely.

   The cause was held under advisement, until the 17th of January 1807, when the opinions of the judges who had heard the argument were delivered.

Tilghman, Chief Justice.

— My opinion on the first point will be rendered unnecessary, by the opinion which I shall deliver on the second point; because, granting that the plaintiffs possessed an insurable interest, I am of opinion, that it clearly appears from the facts stated, that they ordered no insurance, and that no insurance was made for them, in any other capacity, than as agents of Don Alvarez Calderon: consequently, they cannot recover for a total loss, as Don Alvarez Calderon has accepted that part of the property which was saved, and thereby made his election to claim only for a partial loss. The instructions of the plaintiffs for effecting the insurance, were to insure expressly for and on behalf of Don Alvarez Calderon. It is true, they insured only $13,750, although the whole effects of p. their principal amounted to $18,733; *and they give the reason, that L $13,750 covered the amount of their advances, including premium, commissions, &c. The defendants might well suppose, that the plaintiffs were to hold this policy for their own security, in case of loss, although the insuranee was made for Don Alvarez Calderon; and that this was the fact, appears from the agreement, dated the 11th of June 1799. But it is not stated, that this agreement was disclosed to the defendants: on the contrary, there is one circumstance which goes far towards convincing me that no such disclosure was made. It is this: by the agreement, the outward cargo was to be at the risk of Don Alvarez Calderon, but the memorandum at the foot of the policy contains a covenant, that the inward cargo should be shipped on account of the plaintiffs. The plaintiffs contend, that they had a lien on the goods, and that it so appears by the bill of lading, and their letter to Mr. Blain. But in my opinion, those papers prove directly the contrary. By the bill of lading, the goods are deliverable, for Don Alvarez Calderon, to P. Blain; so that Don Alvarez Calderon might have compelled Blain to give him possession of the goods, before the expiration of the fifteen days, which were allowed for payment of the plaintiffs’ demand. The plaintiffs, in their first letter to Blain, declare that the respectability of Don Alvarez Calderon’s character was a sufficient guarantee for the honorable execution of his agreement. And even in their second letter, although they began to apprehend difficulty from the capricious temper of the Don, they gave no intimation of any expectation, that their agent should hold the goods until he received payment of their demand.

Suppose, Don Alvarez Calderon had paid the plaintiffs’ account; can it be contended, that he could not recover for his own use, on this policy, the amount of the loss, that he has actually sustained ? And if he could, does it not inevitably follow, that the plaintiffs cannot recover for their own use ? If they can, one insurance, effected for one premium, may be made to cover two different interests, vested in different persons. Besides, the plaintiffs attempt, most unreasonably, to make the defendants answerable for a risk, which they never meant to run; that is, for the integrity and good conduct of Don Alvarez Calderon. And after that gentleman has received the property, which was restored to him by the British court of admiralty, the defendants are called on to answer for it, as being lost. To render the impropriety of this demand the more complete, the plaintiffs made the abandonment, on which they found their claim, expressly by order of Don Alvarez Calderon. Nothing can be clearer than the plaintiffs, throughout the whole of the transaction of this insurance, acted not for themselves, but as the agents of Don Alvarez Calderon.

3d. On the third point, there is no difficulty. Undoubtedly, the plaintiffs may recover for the partial loss, sustained by Don Alvarez Calderon. -1 *The defendants do not deny it. I presume, the parties can easily adjust this loss. Indeed, I understood so, from what fell from Mr. Levy, in the course of his argument.

4th. The last question in this case is, whether the plaintiffs are entitled to a return of any part, and how much, of the premium ? The general rule is, that where the voyage is entire,, and the risk has once commenced, there shall be no return of premium. But when, by the course of trade, or the agreement of the parties, the voyage is divided into distinct parts; and on one of these parts, no risk has been run, there shall be an apportionment of the premium, and part shall be returned. A voyage may be entire, though the ship is to go to a number of different places, and to take in different cargoes. But if, in the contract of insurance, there are certain contingencies introduced, which, at certain periods of the voyage, may operate so as to make the insurance void, it has been considered, that in such cases, the voyage may be supposed to have been divided, in the contemplation of the parties, into distinct parts. As in the case of Stevenson v. Snow (3 Burr. 1237), which was an insurance of a ship “ at and from London to Halifax, warranted to depart with convoy from Portsmouth.” The convoy was gone, before the ship arrived at Portsmouth; and by the judgment of Lord Mansfield, and the whole court of king’s bench, there was a return of part of the premium. In the case before us, it appears to have been in contemplation of the parties, that on the voyage from the Havana home, there might be contingencies, which would either avoid the policy, for that part of the voyage, or lessen the risk, so far as to require a part return of premium. The goods shipped on the outward voyage, are warranted to be the property of Hon Alvarez Calderon: it was doubtful, whether any goods would be shipped on the inward voyage. If a remittance was made in bills of exchange, there was to be a return of seven and a half per cent., part of the premium. If goods were shipped, they were warranted to be on account of the plaintiffs. It seems to be the spirit of this agreement, that the voyage maybe divided; and that if no goods were shipped, there should be a return of seven and a half per cent.

On the whole of the case, I am of opinion, that the plaintiffs are entitled to recover for a partial loss, and a return premium of seven and a half per cent., with interest from the commencement of the action, I do not think, that they should be allowed interest for a longer time, because they demanded more than they were entitled to, and have put the defendants to the expense of contesting their claim for a total loss.

Yeates, Justice, being indisposed, sent his opinion, in writing, to the court, and it was read by the prothonotary. He concurred in the decision, that the plaintiffs were entitled to recover a partial loss, for the goods lost and damaged; but he considered *the voyage as entire, and consequently, was opposed to the claim for a return of premium. L

Smith and Brackenridge, Justices, concurred, generally, in the sentiments delivered by the chief justice.

And judgment was entered for the plaintiffs, accordingly ; the quantum to be calculated by the parties.

         The assured is entitled to a return of the premium, if the goods upon which the insurance was effected have never been put on board the vessel, or if she was not seaworthy, at the time the risk would have commenced, if it had commenced at all. Scriba v. Insurance Co. of North America, 2 W. C. C. 107. But fraud on the part of the assured, will bar him from demanding a return of premium. Schwartz ¶. United States Ins. Co., 8 Id. 1V0.

       On the question of interest, Dallas took the liberty of suggesting to the court, after the opinions were delivered, that the practice had uniformly been, to allow interest on the amount actually recovered, upon the expiration of thirty days, after depositing the proofs of loss; and that, on principle, the underwriters could only discharge themselves from mterest. or costs, by a tender, or payment into court, of the sum due. But the Chief Justice answered, that the subject had been considered, and was now decided.


author: Dickinson, J.

text:
    SEPTEMBER TERM, 1788.
    W. B., surviving partner, &c., appellant, v. Latimer, respondent.

      Prize jurisdiction. — Effect of verdict.

    In case of a capture on a navigable water, the question of prize or no prize, is within the jurisdiction of the admiralty, though the property seized belong to a citizen of the state in which the capture was made.
    Upon a bill of exceptions to another point, and after a general verdict, the court is not bound to consider a judgment by default in replevin, as an affirmance of property.
    The facts, arguments and principles involved in the discussion of this cause, were stated by the first commissioned judge, in the following terms :

       I have been presented with the report of this case, and of the next, by the learned and venerable judge who pronounced the judgments of the court; and their intrinsic merit, as well as the respect due to the judge, must render any apology for their publication unnecessary.

   Dickinson, J.

— An action of trover was brought by the appellant and his partner, in the court of common pleas, in Kent, for the brig Endeavor and her cargo. There was a general verdict and a judgment for the plaintiff, in that court. The cause was then removed into the supreme court, by a writ of error, and there the judgment of the court below was reversed. The appeal, in this cause, is from that judgment of reversal.

Upon the trial in the county court, the plaintiff gave in evidence, that the defendant, as marshal of the admiralty, appointed Ralph Walker to take the brig and cargo into his care and possession ; that he did so, and continued possessed thereof, until they were replevied by virtue of the writ of replevin in the judgment hereafter mentioned ; and that the defendant, by a warrant in writing, appointed John Dawson, deputy-marshal, &c.”

*The plaintiff then offered in evidence, the record of an action of replevin, brought by him and his deceased partner against the said Walker and others, to February term 1782, upon which action, a judgment was entered, at the same term, by default, for the said brig and cargo. The defendant, by his counsel, objected to the same, inasmuch as he was not a party to the action of replevin; but the court overruled the objection. To this opinion of the court, the defendant’s counsel tendered a bill of exceptions, that was sealed by the judges, in which the facts before mentioned, were stated.

Upon the same trial, the defendant gave in evidence, “ the transcript of the proceedings in the court of admiralty, by which it appeared, that the brig Endeavor and her cargo, had been condemned in the said court, as lawful prize, to and for the use of the captors, and had been sold by the defendant, as marshal of that court, under that decree. The plaintiff, by his counsel, objected to the operation of said condemnation, inasmuch as the said court of admiralty had not jurisdiction, the said brig and cargo being taken and seized as prize, at Whitehall landing, in Little Duck creek, in the body of Kent county, and belonging, at the time of seizure, to citizens and inhabitants of ’the said county, which objection, the court held to be sufficient, for the causes above stated.” To this opinion of the court, the defendant’s counsel tendered a bill of exceptions, afterwards duly sealed, in which the particulars before recited are set forth.

The capture was made, during the late war, in December 1781. It is contended by the counsel for the appellant, “ that the action, in this case, against the officer of the court of admiralty, is maintainable, and two principal points are insisted on : 1st. That the court of admiralty had not jurisdiction ; and 2d. That if that court had jurisdiction, yet the judgment in replevin, subsequent to the decree of condemnation, is an affirmance of property in the appellant, of which, as such an affirmance, we are bound to take notice, and thereby to be concluded.”

With respect to the first principal point, it is urged, “ that the admiralty had not jurisdiction, by any principle of law, because its jurisdiction extends only to acts done upon the high seas ; and in cases of capture, is governed by the law of nations, which can apply only to questions between citizens or subjects of different states or kingdoms; that it had not jurisdiction, under any resolutions of congress, because they do not reach to the present instance ; that there was but a bare intent to offend ; and that the legislature of this state had directed a particular mode of proceeding, in every such instance, by the act of assembly passed on the 20th day of May 1778.”

A great number of eases has been read, in order to show that the *iii 1 ^diction of the admiralty, extends only to acts done *upon the high seas. The same answer may serve for every one of them ; they all relate to causes civil and marine, and not to causes of prize. The question, prize or no prize, belongs to the jurisdiction of the admiralty, whether the capture be upon the high seas, in ports, rivers or within the body of a county.” It is not necessary to inquire how far this doctrine may be extended. The cause now to be determined, is of a capture upon a navigable water. The decisions in the eases of Le Caux v. Eden, Lindo v. Rodney and another, Brown and Burton v. Francklyn, and Key and Hubbard v. Pearce, have removed every doubt upon this head.

The other branch of this objection is, “ that, in cases of capture, the admiralty is governed by the law of nations, which can apply only to questions between citizens or subjects of different states or kingdoms.” The law is as clear upon this, as upon the former, part of the objection.

Whether it be, that, in time of war, the usual forms cannot be observed ; or that persons, engaged in enterprises favorable to enemies, are considered as connected with them in councils and interests ; or that, as the welfare of a society depends on the issue of the war, therefore, the endeavors of the well-affected, amidst uncertainties and dangers, to guard the public happiness, give a peculiar sanction to their exertions, it is evident, that, upon captures as prize, the admiralty proceeds against the property taken, though it belongs to citizens or subjects of the state or kingdom, by the authority of which the court is established. If this rule be deemed essential to the general weal, in common wars, arising, perhaps, from disputes about borders, distant territories, or commercial benefits, how much more occasion is there for such vigilance and strictness, in a war like the last, a war of invasion, piercing into the heart of a country, and involving in its event, the freedom of a whole people and their posterity.

In the cases before referred to, not to mention any more, Brown and Burton were English subjects, and Key and Hubbard, Le Caux and Lindo, were British subjects. Thus, that law from which our jurisprudence is derived, stands established, by a multitude of judicial determinations, for several ages. The courts of admiralty, in these states, proceed in the same manner. The court of admiralty, in this state, condemned a vessel, taken in Jones’s creek, within the body of Kent county, and belonging to an inhabitant thereof ; yet no objection, that *we have ever p. heard of, was made to the jurisdiction of the admiralty.

Here, it may be proper to recollect, that, in the present instance, the court of common pleas expressly held the objection of the appellant’s, then plaintiff’s, counsel, against the operation of the condemnation in the-admiralty, “ to be sufficient, because that court had not jurisdiction, inasmuch as the brig and cargo were taken and seized as prize, at Whitehall, in Little Duck creek, in the body of Kent county, and belonging, at the time of seizure, to citizens and inhabitants of said county.”

The next allegation of the counsel for the appellant is, “that the court of admiralty had not jurisdiction, under any resolutions of congress particularly referring to those of the 25th of November 1775, and the 23d of March 1776. The second of the resolutions, in November, provides, that “ all transport vessels, in the British service, &c., and all vessels, to whomsoever belonging, that shall be employed in carrying provisions, &e., to the British army or navy, &e., shall be liable to seizure, and, with their cargoes, shall be forfeited.” By the fourth, it is “ recommended to the legislatures of the United Colonies, to erect courts of justice, or give jurisdiction to the courts now in being, for determining concerning the captures to be made as aforesaid, all trials in such eases to be had, by a jury, <fcc.” By the fifth, “ aü prosecutions shall be commenced in the court of that colony, in which the captures shall be made ; but if no such court be at that time erected, in the said colony, or if the capture shall be made on open sea, then the prosecution shall be in the court of such colony as the captor may find most convenient, &c.” By the sixth, “an appeal, in all cases, shall be allowed to congress, or such persons as they shall appoint, &c.”

By the fifth of the resolutions, in March, it is determined, that all vessels, &c., belonging to the inhabitants of Great Britain as aforesaid, and all vessels which may be employed in carrying supplies to the ministerial armies, which shall happen to be taken near the shores of any of these colonies, by the people of the country, or detachments from the army, shall be deemed lawful prize ; and the court of admiralty, within the said colony, is required, on the condemnation thereof, to adjudge payment of charges, and distribution, &e.”

It is said, “ that if the words c all vessels,’ and all vessels to whomsoever belonging,’ can be construed to extend to vessels owned by inhabitants of the United States, then colonies, yet the first set of resolutions wholly respects a condemnation upon trial by jury, and the second set, captures ‘ near the shores of any colony,’ circumstances very different from those of the present instance; and both sets have regard, solely, to, vessels *v ^employed in carrying, &c., though here, at most, was only a design of carrying.”

The best way of discovering how far arguments, deduced from resolutions of congress, can bo applied on this occasion, will be, to consider them, not separately, but conjointly, as forming a system, that existed in force at the time of the transaction. On the 8th of January 1780, long before the capture of the Endeavor, it was resolved by congress, “ that the trials in the courts of admiralty, in cases of capture, be according to the usage of nations, and not by jury.” It does not appear that any other material part of the foregoing resolutions in 1775 and 1776, was repealed. Therefore, the powers intended, in those resolutions, to be exercised by the courts of admiralty, remained ; only tho mode of exercising them was altered. The obligation of any of these resolutions has not been, and will not be, denied. Of course, the exception taken to the resolution of 1775, does not, in any manner, impeach the regularity of the proceedings in this cause.

As to the exception, founded upon these words, in the resolutions of 1776, “near the shores of any of tho colonies ;” it would be a very singular distinction, if vessels, engaged in hostile projects, should be liable to seizure and condemnation, below the mouth of a river or creek, and should gain protection, by entering into it, for the very purpose of more effectually carrying them on ; especially, if it be considered, that congress certainly intended the resolutions of 1775 and 1776, to agree and co-operate. They did not undertake to say, that “the shores ” of any colony,'were the limits of that colony; and they expressly speak,in the 5th resolution of 1775, of captures made “ in ” a colony.

The exception taken against both sets of resolutions, states, that “they have regard solely to vessels employed in carrying, &c., and that here, at most, was only a design of carrying ;” or, in other words, that the offence was not committed, but only intended, On the other hand, it is set forth by the judge, in his decree, that the fixed design of the appellant and his partner, through all the transactions relating to this vessel, was to carry her and her cargo to New York, then in the possession of the British fleet and army ; and that they had obtained a passport from the admiral, who was there, for this purpose ; and it appears, from the plea and answer of the appellant, in the court of admiralty, and from other parts of the proceed-[*vi. ings, that the brig Endeavor had *been purchased at Lewes Town, brought into Little Duck creek, as far up as Barker’s landing, had there received a considerable part of her cargo, and then went down several miles to the place where she was captured. If she was going to New York, surely she was “ employed in carrying supplies to the British army.”

This point has been deemed very important, and many ingenious arguments have been offered upon it. One remark may, perhaps, throw some light upon the subject. Whether the Endeavor was “ employed in carrying supplies to the British army,” is a question of fact. This court is now sitting to correct errors in law, “ as was allowed under the old government in the last resort, to the king in council.” The cause now depending comes before us, after a removal into the supreme court, by a writ of error, upon a general verdict, and a judgment thereon below. Must there not be some great deviation from legal principles, in the method proposed for the decision of this business, since it leads to so extraordinary a conclusion, that, instead of being judges to determine what the law is, we are, in a case thus circumstanced, to become an imperfect jury, for the re-trial of a matter of fact?

The last objection of the appellant’s counsel, comprehended in the first principal point, is, “ that the legislature of this state, has directed a particular mode of proceeding, in every such instance as the present, by an act of assembly, passed on the 20th day of May 1778.” By that act, “all provisions and supplies loaden on board any vessel or other carriage, in any place or port within the state, to the intent, &c., to be conveyed, &c., to or from the enemy, &c., shall be forfeited, with the craft, &e., carrying the same, to the use of the captors; and two justices of the peace of the county where such capture happens, may adjudge a forfeiture, and order sale, &c.” Proceedings have been, accordingly, had, at least, in one instance, at New Castle, in July 1782.

At the time of making this law, the court of admiralty was subsisting in this state. Public acts and dates may here be material. In less than four months after the resolutions in March 1776, the declaration of independence was made. In less than three months from that time, with the same spirit of federalism, that has, on so many occasions, directed the conduct of this state, our constitution was framed, candidly recognising the authority of “ resolutions of congress,” and among other things, requiring a judge of admiralty.” A judge was soon after appointed. It is not to be supposed, *vii 1 Statin t'ae l°ng interval, between November 1775, when congress recommended the establishment of courts, for condemnation of captures, taken in any part of united America, as well as elsewhere, until May 1778, when this act of assembly was made, there was no court here, vested with correspondent powers. The court of admiralty had cognisance in such cases. Principles of law, and the circumstances of our situation, required that it should have cognisance.

In that act, are no words that, positively, or by necessary implication, take away any authority then existing in another tribunal. The general assembly might think it advisable, in aid of that authority, to diffuse the jurisdiction given by the act, throughout every part of the state, among the justices of the peace, as the offences might be numei’ous, and it woxxld, sometimes, be exercised upon occasions of very trifling moment. The law is cleax-, that where a court has jurisdiction in certain cases, and afterwards jurisdiction therein is given to another court, this provision is only cumulative, not privative ; it does not abrogate the authority of the first; but both have a concurrent jurisdiction. (1 Black. Com. 89, 90.)

There was another question, moved in the course of ax-gument, that seems not properly referable to either of the two principal points before mentioned. Several cases were produced to show, that “ it is necessary in every suit in the admiralty, to allege in the libel, that the cause of action arose upon the high seas.” One distinction solves all difficulties on that question. In causes civil and marine, such an allegation may be necessary; in causes of prize, it is not. 2 Douglas 608.

Thus fdr, induced by particular considerations, have we pursued the way marked out by the appellant’s counsel, for examining this cause, of much importance, and of the first impression among us. Where does it begin, and to what does it lead ? From a supposed right, in a court of common law, of scrutinizing, in an action of tx-over, a decree of the admiralty, in a cause of prize, after execution; to a power of reversing it in effect. Not a case has been produced by the learned counsel, to support this doctrine. It has been said, indeed, that “ the capture, being within the body of a county, is properly triable in a court of common law, especially, where only citizens are concerned.” There is no diffex-ence of this kind, upon captures as prize. It is well known, with what vigilance the judges in Westminster Hall have watched the admii’alty jux-isdiction, and with what vigor they have checked it, when unduly exercised. Yet, for this purpose, they never availed themselves of the circumstances now suggested. Besides, there are causes, triable by jury, that originate out of the county, and out of the state, in which the trial is had. Where, then, is their power, in causes of prize, to stop ? It is likely, that mox-e respect will be paid to the sentence of another court of admiralty, than to that of our own ? And ought not the ^complaint of a stranger, a neutral, a friend, to be as much regarded in our courts of justice, as that of an inhabitant? If once such a contest shall be opened, between the jurisdiction of admiralty courts of prize, and that of common-law courts, courts founded upon different principles, and governed by different codes, it would be almost impossible to describe the confusions and mischiefs that must inevitably follow. The evil will appear to be still increased, if it be considered that this contest would be carried on, by a number of common-law courts, in several states, against an admiralty jurisdiction, necessarily blended with the very nature of their federal union. The law delights in certainty and quiet, because, without these, there can be no liberty.

Much has been said in praise of trial by jury, and as much against admiralty courts, “ in each of which,” it has been alleged, “ a single judge presides, who may draw actions into his jurisdiction, by giving them what name he chooses, and decree in them as he pleases.” If any citizen of United America does not value trial by jury, at its justly high worth, he is incapable of duly estimating any of his political rights. But if, by the constitution and laws of our country, a jurisdiction is to be exercised in another manner, it is our duty to observe the constitution and laws, without perplexing ourselves by reflections on the excellency of trial by jury. Congress, after the experience of several years, found it requisite to resolve, that trials in the admiralty courts, in cases of captures, should not be by jury. And it is to be noticed, that the act of assembly, under which, it is contended, by the appellant’s counsel, that this cause ought to have been tried, gives neither trial by jury, nor an appeal.

Our constitution requires, to use its own words, the appointment of a judge of admiralty.” Our laws acknowledge his authority. Such a jurisdiction was established, throughout the British parts of this continent, before the revolution, and exists in every Christian maritime state and kingdom in Europe. The ease, the cautions, the dispatch, under this jurisdiction, are attended, in time of war, with great benefits to captors, claimants and all parties concerned.

*Admitting the government of a free state to be so degraded, that the “ judge of the admiralty appointed by the joint ballots of the *- president and general assembly,” as he is in this state, wants the integrity, and knowledge he ought to possess, yet his irregularities are subjected to an immediate and effectual correction : for, by the resolves of congress, an appeal is given to that body, or to -the persons by them delegated.

When, to the care of that assembly, under Providence, the inhabitants of these states committed their liberties, lives and fortunes, surely there is no impropriety in supposing, that they might safely have been trusted to decide on suob a case as the property of the Endeavor and her cargo. Yet this plain and easy method of obtaining redress, if any injury had been done, a method agreed to, upon the maturest deliberation, by United America, has been declined, and the courts of common laAv, in this state, are to be engaged in trying causes of prize.

Let us now attend to the sentiments of judges, eminently distinguished for their abilities and learning upon this subject. “The admiralty has jurisdiction, not only of the question, prize or no prize,but of all its consequences: this jurisdiction belongs to the admiralty, totally and exclusively ; and the courts of common law have no jurisdiction at all, in such questions.”

“ Though for taking a ship on the high seas, trespass would lie, at common Iuav, yet, Avhen taken as a prize, though taken wrongfully, though it were acquitted, and though there Avere no color for the taking, the judge of the admiralty Avas judge of the damages and costs, as well as of the principal matter ; and if such actions should be brought at common law, on plea of not guilty, the plaintiff could not recover.”

“ It is true, the sentence of acquittal in the admiralty, is conclusive, that the ship Avas not lawful prize : but it is evidence of a thing, which a court of common law cannot inquire into. If the original taking be not a trespass cognisable at common law, the sentence of the admiralty court cannot give a jurisdiction to a court of common law, which it had not before.” Douglas.

“ The validity of a sentence, by a court of admiralty, in a cause of prize, is not determinable by the common law.” Saunders, Redley and Dalbow v. Egglesfield and Whitall.

Though the superior courts of common law, so strictly superintend the conduct of the admiralty, yet, “there is not one instance where a prohibition was over granted in a cause of prize.” The case of Brown and Burton v. Franklyn, in the time of William III., is remarkable in this respect. On motion for a prohibition, the plaintiffs suggested, that the defendant, *x 1 *boinS king’s proctor, had libelled in the admiralty concerning a ship and cargo, &c., whereas, the ship was a Avreck in the East Indies, and that there had been a sentence in the admiralty that all was prize; and that, upon this sentence, the defendant libelled against the plaintiffs, charging them with embezzlement, &c. The court inclined, that the plaintiffs ought to have an opportunity to be heard, and to controvert the matter of fact; but after hearing Dr. Lane, a civilian, and considering that, upon an appeal, the appellants would be let in to controvert the right, and to disprove the prize ; and that prize or no prize, was a matter not triable at common laAv, but altogether appropriated to the jurisdiction of the admiralty, the prohibition was denied.” Carth. 398, 474.

“ The question, prize or no prize, is the boundary line.” “ The true reason why the jurisdiction is appropriated to the admiralty, is, that prizes are acquisitions jure belli; and jus belli is to be determined by the law of nations, and not by the particular municipal laAVS of any country.”

“ The jurisdiction of a court of admiralty, generally, is limited to matters arising upon the high seas, and is, in that respect, local; but it is not so in cases of prize ; for in them, the jurisdiction does not depend on the locality, but the nature, o£ the question, which is such as it not to be tried by any rule of the common law, but by a more general law.” Douglas.

If the validity of a sentence by a court of admiralty in a cause of prize, is not determinable by a court of common law; if, even after an acquittal by the admiralty, declaring the ship to be no prize, an action at common law is not maintainable for the capture, or for any transaction in consequence of it, certainly the proceedings in the court of common pleas, are not warranted by law.

We now proceed to the second principal point. It is contended by the counsel for the appellant, “ that if the court of admiralty had jurisdiction, yet the judgment in replevin being subsequent to the decree of condemnation, is an affirmance of property in the appellant, of which, as such an affirmance, we are bound to take notice, and thereby to be concluded.” As this assertion, if well founded, will be productive of very important effects, it deserves a strict investigation.

If the court of admiralty had jurisdiction of the original cause, that is, of the capture as prize, it is equally plain, from the books, that it had jurisdiction of all consequences, to the exclusion of every court of common law. The action of replevin, for the Endeavor and her cargo, ought not, therefore, to have been brought. The court of common pleas had no jurisdiction in the case. Again, if the court of admiralty had jurisdiction, an injury was done to the respondent, by the determination of the common pleas, that the court of admiralty had not jurisdiction ; *and if, by the judgment in replevin, we are estopped from relieving him, though he applies to us for relief, in a legal manner, here is an injury that must for ever remain without a remedy ; which the law justly abhors. [*xi.

These irregularities may be set right, by a due arrangement of the several parts of this cause. On the trial in the common pleas, the respondent tendered two bills of exceptions. In one of them, he objected to the record in the action of replevin being given in evidence against him, inasmuch as he was not a party to the same : but the court overruled the objection.” On this point, their judgment, supposing they had jurisdiction, appears to have been regular. In the other, he objected to the decision of the judges, that “ the court of admiralty had not jurisdiction.”

These bills are separate; these objections are distinct. If, on either of them, an erroneous decision was given, wrong was done to the respondent, or, to express it in other words, that was dealt out to him for law, that was not law : yet it is urged by the appellant’s counsel, that they ought to be considered together, as utterly to deprive the respondent of all benefit by the last.

The question before us, is not, whether a judgment by default in replevin, is an affirmance of property : but whether, in the present instance, we are obliged to consider it as such an affirmance. The judgment in replevin, was merely a piece of evidence given to the jury ; it had its effect, mingled with other evidence, in the general verdict. It is impossible for us, with any respect for substantial justice, to separate it from the other evidence, shat up in that verdict, because it is impossible for us to determine, what effect the proceedings in the court of admiralty would have had upon the jury, if the judges of the common pleas had not condemned them, by deciding, that “ the court of admiralty had not jurisdiction.” In what inextricable confusion should we involve the merits of this cause, by regarding the judgment in replevin, as an affirmance of property in the appellant, superseding every other consideration ?

The question before us, on this point, finally resolves itself into the same that was before the judges of the common pleas, that is, whether the judgment in replevin, was regularly admissible as evidence, “ inasmuch as the respondent was not a party to it,” not,, what was its legal operation on the property in contest. The laiv is clear, that “ a bill of exceptions is not to draw the whole matter into examination again. It is only for a single 1 point.” *Not one case has been produced, by the learned counsel '•* for the appellant, to show, that, upon a bill of exceptions to another point, and after a general verdict, we are bound to consider a judgment by default in replevin, brought before us, as this is, as an affirmance of property ; though struck with the position, we desired that such a case, if to be found, might be produced. Not a case has been offered, that can, by any analogy, be made to maintain the inference drawn in behalf of the appellant.

The judgment of the supreme court affirmed

       By the 25th section of our constitution, “the common law of England, and so much of the statute law as has been heretofore adopted in practice, shall remain in force, unless they shall be altered, &c.”

      5) The facts here mentioned, that the vessel was taken in Jones’s creek, within the body of Kent county, and belonged to an inhabitant thereof, were stated in the libel oí Barret and others.

         The libel of Barret and others, against the vessel, taken in June 1778, and afterwards condemned, stated that she was taken in “ Jones’s creek, and near the mouth thereof, in Kent county.” This libel also set forth the resolution of congress on thi 28d of March 1776, as the foundation of the prosecution.

         The intention of supplying an enemy, manifested by such circumstances as in this case, is clearly criminal, at common law. Foster 217.

      5) Words of the act of assembly establishing the court of appeals.

         The constitution was agreed to, the 10th of September 1776,

         This is evident from the conf ederation; and before that was completely ratified, commissions to vessels of war, and instructions, were issued by congress, bonds were given to them, and appeals were reserved to them. These powers rested upon the same principles with those, by which congress was authorized to begin, and prosecute, the late war, thoroughout its various operations. To question the validity of those powers, would seem, plainly, to impeach the justice of those operations.

      &) There was a condemnation, without trial by jury, of the vessel taken by Philip Barret and others, in 1778,.

         Hale, Holt, Lee, Mansfield, Buller, Avith the unanimous assent of their brethren, the other judges.

       If, upon a trial, a party takes several bills of exception; and upon a writ of error, succeeds in supporting only one of them, the judgment below is to be reversed, because he was injured by this decision against him, though he was not by the rest.

         Evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers, and before the judge and jury; each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality that migl t arise in his own breast. If, either in his directions or decisions, he mis-states the law, by ignorance, inadvertence or design, the counsel on either side may require him. publicly, to seal a bill of exceptions, stating the point wherein he is supposed to err. 3 Blackstone 372; Buffer 3KX