
    Mumford against The Phoenix Insurance Company.
    ALBANY,
    Feb. 1811.
    A car(,0 was from Neu>-York to Cherbourg, in France; and the policy contained ranted free from accou'nt^of any ^ited W trade.” <*uiser, and was compelled to go into the outer ]muth, °f where fcT shT hours" eddto proceed" *)U.t n? P01'5?11 belonging to the vessel went on shore during* the time of her detention. The vessel and cargo éom^aíd were de?1 the'^lrSa ¿^ted aon Ctlie alleged ground that the capt$xiii9 on his examination by one of the officers of made^a^/^? Sle°had not^beln this was not a loss arising from any illicit nLie^hutundev arrestsPand ,m°J that* the insurevs were liable.
    THIS was an action on a policy of insurance, on goods on board of the ship Victory, from New-York to Cherbourg, in France.
    
    . , , _ T .. „ . . . ine cause was tried at the New-York sittings, in June, 1810, when a verdict was found for the plaintiff, subject to the opinion of the court on the following case, with liberty to either party to turn the same into a special verdict, The policy contained the usual printed clause, “ warranted free from seizure for or on account of any illicit n „ or prohibited trade.
    The Victory sailed from New-York the beginning of August, 1807, with a cargo on board. The goods insured consisted of 225 barrels of potashes, and 30 tons of fustic, which were admitted to be American property 7 s e r r j belonging to the plaintiff, and of which he was the im- , porter. On tne 30th of August, 1807, while on her , Tr- . , _ , , . ... voyage, the Victory met with an English gun brig, which compelled her to go to Plymouth, her papers being taken by the master of the gun brig. She arrived in the outer road of Plymouth on the same day, and after being detained six hours, her papers were returned, and she was . • permitted to proceed on her voyage. During this de- . . . , r , tention, neither the master nor any or the crew went on shore, and the ship’s papers were returned without any endorsement. The Victory arrived in the Cherbourg roads, on the 1st of September, 1807, and after the usual examinations of the officers of the customs and of the government, she was conducted by the pilot to the town of Cherbourg, where she arrived the 3d of September. The next day the master made a report of the ship and cargo, in the usual manner, but not receiving any permit to land the cargo, be remained, without breaking bulk, ° 1 ' Voj,. Ylh siuntil the 7th or 8th of September. On the 4th of September the master and two seamen made a report and entry of the ship at the custom-house, and the following declaration, which was entered in the custom-house register: “ That the Victory was carried by tax English man of war brig into the outer road of Plymouth-, where she anchored for the space of six hours, after which time she was permitted to prosecute her voyage.” The master also made his protest, in which he stated that his ship was leaky, and requested that the cargo might be discharged, as he feared it was damaged. On the 7th of September the consignees of the plaintiff (the ship' and residue of the cargo being put under sequestration) made the requisite declarations, entries and bonds at the custom-house, for the purpose of landing the goods; but the custom-house officer refused a permit to land them, unless the consignees should give'their obligation and declaration that the same should remain in sequestration, at the custom-house, which obligation and declaration was accordingly given, before obtaining any permit to land. After obtaining such permit, the potashes and fustic were landed, under the inspection of the custom-house officers, and placed in the warehouses designated by government, where they were kept under the keys of the customhouse, in the possession of its officers. The consignees had not the possession or disposal of the goods, at any time, nor any control over them; but from the time of .their landing until they were condemned and sold, they remained sequestered, and under the keys of the customhouse. The goods were not put under the customhouse keys by the consignees, for the purpose of enjoying the privilege of entrepot, or any other facilities to the consignees; and the goods were free from duty, on importation into France. A guard was placed on the ship, on the 7th of September, before the goods were, landed, and after certain examinations and proceedings, ihe ship and cargo were, on the next day, declared to be liable to seizure, and ordered to remain under sequestration, until superior orders were received; and the necessary precautions were taken, on the part of the government, to secure the vessel and the cargo, including the goods insured, which were afterwards condemned by the French council of prizes.
    The proces verbal, on which the decree of condemnation purported to be grounded, stated, that the director of the customs at Cherbourg having, on the 7th of September, 1807, received a letter from the director-general of the customs, dated the 4th of September, informing that .the emperor had decided, that the 7th and 8th articles of the decree of the 21st of November, 1806, called the Berlin decree, should have a full and entire execution, and that no vessel which should have touched in England, or should have been carried thither, should be admitted; and that the said director of the customs, having received information from one of the chief oEcers of the customs, informing him that it appeared by the declaration of the captain of the Victory, and two of the crew, made at the custom-house, that the ship had touched in England, the director went to the principal commissary of marine, and having learned that incontempt of the 3d, 7th and 8th articles of the said decree, which were made known to the captain, in his own language, by one of the oEcers of the frigate Stationaire, .the captain had declared that he did not come direct . from England, nor from the English colonies, and had not been there since the 21st November, 1806, directed a guard, on the fth of September, to be placed on the Victory, which was accordingly done, That on the 8th of September an examination was had on board of the Victory, by the proper oEcers of the government; and it was found by the' ship’s log-book, that she anchored in the outer road of Plymouth, on the 30th of August, 1807, where she was carried by an English brig; that the captain had been op shore, and that the ship had left the road of Plymouth on the 31st of August, and pursued her destination to Cherbourg; that during the examination of the log-book, the captain of the Victory went on deck and took from his pocket-book a paper, which he tore in pieces; that the pieces being put together, the paper was found to be a certificate of the American corn sul at Plymouth, purporting that the ship had been carried by an English armed brig into that port, and released to continue .her voyage; that the master, mate and one of the marines were interrogated anew, and made the declaration which they had made at the custom-house. That the master being asked why he made a false decía-, ration to the commandant of the frigate Stationaire, in affirming that he had not touched in England, he answered that he did not understand the question. That on being asked why he privately tore the certificate of the American consul, he answered, that he was astonished at the questions put to him, and was afraid lest it might injure himj that he was then informed that the ship and cargo were subject to seizure, in Conformity to the 7th and 8th articles of the decree of the 21st November, 1806, for the single fact of h,is false declaration, but as to the cargo, part of which was already discharged and Under the control of the custom-house, things should remain in the state they were until superior orders should be received; and necessary measures were taken, ón the part of the government, to secure the ship and "cargo.
    The proces verbal was sent to the counsellor of state, and on the 20th of September, 1807, his letter was received, s'tati-ng that there was a good cause1 of seizure of the ship and cargo, as English property, on the ground of a contravention of the 8th article of the _Bet° lin decree.
    The proces verbal, and other acts and documents, were transmitted to' the council of prizes, who pronounced a decree, declaring the seizure of the ship and c&rgo, in'eluding what was landed and under the custom-house ■ . keys, to be good and lawful, under the 8th article of the decree of the 21st November, 1806, and confiscating the ship and cargo for the benefit of the government, to be disposed of pursuant to that decree. The reasons set forth in the decree were, that the captain, on the 2d of September, 1807, affirmed, that he had not been in England, when by his log-book and his own declaration, it appeared that he had been in England; that none of the excuses for the false declaration, offered by the captain, as that he was intoxicated at the time, or did not understand the language of the writing he signed, which was m French and English, could be admitted.
    The captain of the Victory was examined as a witness at the trial. He testified that none of the crew left the Victory while in the road of Plymouth, that he was ordered on board of the English gun brig, but never went .ashore, nor was any thing taken on board, except the certificate of the American consul. On his arrival at l the Cherbourg roads, where he came to anchor; a boat from the custom-house, and one belonging to the . police, came on board, by whom he was examined, and to whom he communicated fully the circumstance of his having been compelled to go into the road of Plymouth; that the officers of the boats examined the ship’s papers and log-book. The pilot then directed him to go on board the frigate Stationaire, before he could go up-to the town, and he accordingly went on board the frigate, where a conversation took place between him and the commander, but as he was ignorant of the French language, and there was no interpreter present, he understood very little of what was s.aid. That he heard no question as to having been in England, or having been visited by the British; that he signed a paper written in the French language, on board of the frigate, which was not translated or explained to him ; but was represented |o be a papet; which it was necessarv for him to sign, before ¡¡the ship could be permitted to go up to the. town; that the ship’s papers and log-book were taken from him by the French officer, and were not returned to him again; that no paper or Ddecree in French ,and English was " shown to him, and that he signed no declaration nor made any acknowledgement that he had been on shore in England; that he did not tear the certificate of-the American consul, but standing on deck, while the officers were examining the log-book, he had occasion to take some money out of his pocket, and took out, at the same time, the certificate, which he had carried in his, pocket, as a paper of no importance, and which was much worn, and on being asked by the officer what it was, he said it was a paper of no consequence, but the officer appearing desirous to have it, he gave it to the broker; and that he made no such answers as are stated in the proces verbal.
    
    A deposition of a witness taken in Cherbourg, under a commission, was read in evidence, which stated that the captain of the Victory signed a paper on board of the Stationaire, or guard-ship, in the road of Cherbourg, declaring that the Victory did not come directly from England or an English colony; that the paper was in the French language, and was signed by the 'captain without any previous interpretation ; and the officer of the guard-ship observed, that it was a formality merely to announce the arrival of the Victory, and the nature of her cargo; that if the usual interrogatories had been put, and properly interpreted to the captain of the Victory, the witness believed the captain would have mentioned his haxfing been compelled to go to Plymouth, and that on such information he would have been ordered, according to the instructions of the government, at that time, to return to sea ; but that the Victory not having been ordered to sea, in consequence of the misunderstanding xvhich took place on board tho guard-ship, and-having once entered the port of Cherbourg, became liable to be confiscated, under the decree of the 21st of November,' 1806, ’ , , , . . and that no means used by the captain, consignee, or any person, could save her or her cargo; that the potashes and fustic were at ho time at the disposal- of the consignees, but the seizure was commenced before the landing of the goods, and never removed; the goods having been permitted to be landed only on giving security to the custom-house, to have them forthcoming, or to pay the value thereof, and to submit to the decision of the government respecting them.
    Soon aftef the sentence of condemnation, the potashes and fustic were sold at public auction, under the direction of the officers of the government, and the proceeds thereof were received and kept by the government or its agents. . '
    
      S. Jones, jun. for the plaintiff.
    The plaintiff having proved his interest,. that the property was American, and that it was seized before it was landed, and after-wards condemned, is, on general principles, entitled to recover. Is there any thing in the reasons .assigned by the French court for the condemnation, which can defeat or prevent 'his recovery ?
    The consular certificate alleged to have been destroyed was a paper of no consequence. It is impossible that the captain would have intended any thing improper in regard to that paper, or have supposed that it could affect him. His account of it is natural, and undoubtedly true. He positively denies the entry in the log-book, as stated in the procés verbal; his papers having been taken from him and detained, he had no means of explanation, and we must rely on hisi deposition. Can it, for a moment, be believed that the master could have understood the purport of the declaration signed by him that he had not been in England? But admitting that he knowingly signed it, and that it was false, is it such a false declaration, as by the law off
    
      nations would be a cause of condemnation? If it is not a sufficient cause of condemnation, under the law of nations, neither can it be under the Berlin decree. It is not requisite to inquire whether this decree is a municipal regulation or not. Admitting that France had a right to prohibit neutral vessels which had touched in England,, or been boarded by English cruisers, from entering her ports; yet she could have a right only to turn away such vessels from her ports, not to seize and condemn them for that cause. Such a seizure and condemnation would be a flagrant act of hostility. In Mayne v. Walter,
      
       where a ship was warranted Portuguese, and was condemned by the French court because she had an English supercargo on board, Lord Mansfield said, it was an arbitrary, oppressive regulation, contrary to the law of nations, and the insured were entitled to recoven After being released by the British cruiser, the master could not avoid proceeding to his port of destination; for, according to the decision in Craig V. The United Insurance Company, the fear of seizure under the Berlin decree would not have justified an abandonment of the voyage. Besides, the master had every reason to believe, from ihe declaration of the American minister at Paris, that the Berlin decree would not be enforced against American vessels. The vessel was, in fact, permitted to enter Cherbourg. The subsequent seizure and condemnation was arbitrary and unjust, and without any fault of the master. Again, if the master did knowingly make a false declaration, it was barratry; being a fraudulent act done to the injury of the owners.
    
    
      T. A. Emmet, contra.
    The point as to barratry must be dismissed; for there is no count in the declaration for barratry. The opinion of Lord Ellenborough, in Earle v. Rowcroft, subverts all distinction between barratry and the faults of the master. It is an essential ingredient in an act of barratry, that it is done by the master for his own benefit.
    
    
      
       Park,265. 474.
    
    
      
      
        6 Johns. Rep. 226.
    
    
      
       2 Stra. 1173. 6 Term Rep. 379. 8 East, 126. Park, 114. 124.
    
    
      
      
        Park, 111.
    
    
      
       3 Johns. Rep. 88.
      
    
   [Jones.

It was agreed by the attorneys, that any special counts which the plaintiff thought necessary, should be added to the declaration.]

The act of the master was either a violation of the law of nations, or of a municipal regulation of the government of France. This is not barratry. It does not appear that the conduct was ex malefeio, or for his owii benefit.

I contend that the goods were safely landed, within the terms of the policy. The vessel arrived at her port of destination. The consignees came forward and petitioned to have the cargo landed; and it was landed in consequence of their request. Notwithstanding the provisional seizure, the goods were not, in fact, sequestered, until a fortnight after they had been landed at the request of the consignees. The words in the policy, “ until the said goods shall- be safely landed,” could never be intended to apply to the goods, after they had once touched the land. Suppose they had been consumed by fire, six months after they had been put into the custom-house stores, would the insurers have been liable ? Are they to continue answerable for an indefinite time ? Is sea risk to be converted into land risk ? The consignees having exercised acts of ownership, and procured the landing of the goods, the policy was at an end, and the defendants discharged.

Again, here was a seizure and condemnation for an illicit and prohibited trade. It is true that the Milan. and Aranjuez decrees were hostile and belligerent. But France did not commence her system by an open hostile act. The Berlin decree is not of that character. The 7th article merely declares that “ no vessel coming directly from England or her colonies, or haying been, there since the publication of the decree, should be admitted into any port.” And the 8th article declares, “that' every, vessel, that, by a false declaration, contravenes the 7th article, shall be seized, and the ship and cargo confiscated, as if English property.” It is not liable to confiscation as English property, but 'as if it were English property.

It may be said that as the council of prizes adjudicated, upon this seizure, it was hostile ; but as the decree gives jurisdiction ‘to that court, as if it were English property, they were bound to decide on the case. This decree is a mere municipal regulation. It does not affect the flag or neutrality of other nations. It does not extend to the high seas. It merely affects vessels coming into the ports of Erame.. It is, therefore, a mere prohibition to trade, and is distinguishable from the Milan and Aranjuez decrees. The sentence of the court declares the seizure good and lawful under the decree, but does not contain the word prize, or any language indicating a hostile seizure. The case of Johnston & Weir v. Ludlow will, probably, be cited to show that to constitute a breach of the warranty, there must be an illicit and prohibited trade, in fact; and that it is not sufficient to show a condemnation, under pretext of an illicit trade.. I admit that this decision is, confirmed by the case of Graham v. The Pennsylvania Insurance Company, in the circuit court of the United States for the district of Pennsylvania. But the words “ for or „„ J ' on account ojf must mean something more than a seizure for an illicit trade, in fact. From the .evidence in the case, it must be taken as a fact that the captain did make a false declaration, in consequence of which the trading at Cherbourg became illicit. The fact having happened, by which the trade under the Berlin decree became illicit, and so declared by the council of prizes, will this court say there was no illicit trade? The facts, according to the proces verbal, were proved by four witnesses; and are they now to be contradicted or explained by the testimony of the captain? If, then, this was a prohibited trade, and the seizure was for that cause, the defendants are discharged.

Hoffman, in reply.

The goods were never safely, landed. When the captain went to the custom-house to make his entry, he declared truly that he had been carried into Plymouth; and in consequence of this declaration there was a provisional seizure of the vessel and cargo. The case states, that at no time were the goods under the dominion of the consignees.

Whether the captain did make a false declaration, or not, is open to examination here; and the fact is positively denied by him. His deposition fully explains the transaction, and shows, most satisfactorily, that he never made such a declaration. But even admitting that he did make a false declaration on board of the guardship, he did not falsify the warranty of neutrality, nor the warranty as to illicit or prohibited trade. The provisional seizure was not made on account of his false declaration at the mouth of the river, but on account of his true declaration at the custom-house. Before the 4th September thé Berlin decree had never been enforced against the Americans. -This ship was the first victim.

But it is said that the Berlin decree is a mere municipal regulation. The preamble shows its true character. It is hostile to Great Britain, and to the gratification of that hostility, it sacrifices all neutral rights. There is no distinction between this and the Milan decree. Both are dictated by the same spirit, and form part of the same system. The principles of both are the same. The latter is only more explicit and. extensive than the former. A condemnation as if it were English property, is the. same as a condemnation as enemy’s property. The case of Craig v. The United Insurance-Company admits that a seizure under the Milan decree would be within the policy. It is for the court to decide whether the Berlin de'cree does not violate neutral rights. If it does, it ceases to be a mere municipal regulation. The question is substantially decided in the case of Speyer v. The New-York Insurance Company. But if the Berlin decree was a mere municipal regulation, the act of the master must be barratry. For it is ‘ settled, that if the master knowingly violates the laws of the country to which the vessel is destined,, in consequence of which she is seized, it is an act of barratry.

Kent, Ch. J.

That question was discussed in thti case of Strickley v. Delafield.

Per Curiam.

The seizure in this case was not on ao count of the fact of the ship having come from England. That fact would only have caused the vessel to be sent away. She was seized and condemned with her cargo, on the single ground of a false declaration of the captain, made on board the Stationaire, that he had not been to England. This appears from the proceedings in the French admiralty, and it was, therefore, not a loss “for or on account of any illicit or prohibited trade.” The avowed cause of the seizure arid loss,, being a fraud in the master, distinguishes this case from that of Speyer v. New-York Insurance Company, (3 Johns. .Rep. 88.) to which it would otherwise have been very analogous. The ground of condemnation was proved, upon the trial of this cause, to be untrue and unjust, and it was a charge exceedingly improbable in itself, considering the circumstances at the time. But we have nothing to do here with the pretexts for the condemnation, so long as the loss was not for any illicit or prohibited trade. The. loss came under the general peril of “arrests and detention of princes.” Going to Cherbourg, after having touched at Plymouth, was going to a prohibited port; under the 7th article of the Berlin decree} but the mere entry into that port was not a breach of warranty. If there had been no seizure, and the ship had taken fire and been burnt in the harbour, before the goods were landed, the insurer would undoubtedly have been liable. Seizure for trading or attempting to trade at Cherbourg, contrary to the Berlin decree, would have brought the case within the reach of the warranty. The seizure and condemnation in this case were not made upon that ground; but on the ground of an alleged imposition by the captain; and ,if it be established by the case that the loss did not arise from seizure for a prohibited trade, but from seizure for another cause, the insurer is responsible for the loss.

Judgment for the plaintiff. 
      
       2 Johns. Cas. 81.
     
      
      
        Condy's ed. of Marshall, 346, a. 347. in note.
     
      
       2 Caines, 223. and see Kendrick v. Delafield. 2 Caines, 67.
     