
    John Williamson and Christopher Fitzsimmons against Tunno & Cox et al.
    
    
      Charleston District,
    
    
      1802.
    
    Breach of blockade mi-der the treaty with Gi'eat Britain, must consist in a second attempt to enter a blockaded mg duly warn-blockading*'*6 The loose de clarations of a captain, at a time when Sonino?°SShfs he ** intended to enter such port if released by an admiral commanding such squad ron, are not of themselves a good ground for capture.
    Ambiguity and uncertainty in tile proceedings in a foreigii court of admiralty, or where a decree is ounded on matter not put in issue by the, pleadings, or where facts are stated in a decree or sentence which do not amount to a justifiable cause of condemnation; in all. these-' cases, lije cause is open to further evidence.
    CASE on a policy of insurance. Verdict for plaintiffs, 1 _ . 1 Motion for a new-trial,
    This was an action on a policy of insurance on the ship' . 1 . * John, and cargo, from the port of Charleston to Cadiz, in . which a verdict was for the plaintiffs*. The present is a motion for a new trial on the part of the defendants.
    The following is the brief state of the case, as reported Johnson, J. who tried the cause.
    That the vessel proceeded on her voyage till near the ° port oi destination, when she was taken by one of the cruisers belonging to the English squadron then blockading tf*at port. That the captain ivas taken on board of the ad.miral’s ship, who examined him and was about to discharge r . m£, . him, when he asked him where he intended to go it he should liberate his ship ? Upon which the captain said, he would go into Cádiz unless he got new orders. Whereupon, the admiral ordered the ship to be carried to Gibraltar, as a prize to the fleet, for persisting in his intentions to enter into a blockaded port, where she was libelled and condemned. She was libelled as enemies property, and condemned for persisting in an intention to enter into the port of Cadiz.
    
    Upon the trial, the Judge permitted the decree to be opened, upon the ground of this ambiguity in the pleadings, as it appeared she was libelled on one ground, and condemned on another, of a very different nature. After the decree was opened, and the parties permitted to go into proof, it appeared that the captain made no attempt to go into the port of Cadiz, after being taken on board of the admiral’s ship. And further, that the property of the ship and cargo were bona fide the property of the plaintiffs, who were American citizens, and not belonging to the enemies of Great Britain. Upon this evidence, • the jury, under the direction of the judge who presided, found for the plaintiffs.
    In support of the motion for a new trial, on behalf of the underwriters, it was contended, that this decree was conclusive ; and that the judge ought not to have permitted any evidence to be given to the jury, which went to contradict it. That the decree of the vice-admiralty court at Gibraltar, was clear and explicit ; the vessel was condemned for persisting in an intention to enter into the port of Cadiz, at that time a blockaded port; which by the laws of nations was a good cause of condemnation. That the right of blockade in time of war, was a part of the national law ; and a violation of it by a neutral in attempting to contravene it, was good cause of seizure and confiscation. Vattel,, lib. 3. sect. 11A That a vessel may clear out to a pert or place where it is lawful to trade, not knowing of a blockade. without being liable to capture ; but persisting to enter after being warned, makes her liable ; and this is expressly alleged in the condemnation, as the ground on which she was declared a lawful prize to the blockading squadron.
    The counsel in support of the motion, then argued, that a condemnation or sentence in a foreign court, was conclusive against all the world, and that no evidence should be allowed to contradict it ; otherwise, the right of captured property would be for ever fluctuating and uncertain. JDoug, 554. Park, 356. 359.
    
      For the plaintiffs, in reply, it was argued, that the judge was correct in his decision, that this decree should be opened, and that the parties should be permitted to go into evidence, to shew that this vessel and cargo was not subject to capture and condemnation. It was admitted, that in all cases where a ship and cargo is libelled and condemned generally as enemies property, that the decree is conclusive against all the world ; or where she is libelled and condemned for breach of blockade, after being duly warned, it is equally conclusive. But on the other hand, it was urged, that wherever there was ambiguitjq or doubts, or uncertainty in a decree, so that it was difficult to tell on what ground the property was condemned, the law would permit such decree to be opened, and suffer the parties to go into other evidence, which had been done on the present occasion. That the proceedings in every prize cause, are to be taken together, and not to be garbled or taken in detached parcels. In this case, it appears, from a perusal of the proceedings, that the vessel and cargo are libelled as enemies property, which is the point put in issue by the captors themselves ; and they are condemned for a breach of blockade ; a point not put in issue by the pleadings, but a very different one, and distinct in its nature.
    Thus, there is a glaring inconsistency and repugnancy on the very face of these proceedings. Who can possibly tell from them, which is the true ground of forfeiture; the cause mentioned in the libel, or in the decretal part of them ? It is impossible. The law is therefore very clear, that if a decree is founded on matter not put in issue by the pleadings, such decree is not conclusive, but may be opened for further evidence. Park, 353. 356. Upon this ground, it was determined, after solemn argument in this court, in the case of Blacklock Bower v. Stewart et al. that the circuit court was regular in opening a decree, and permitting the parties to go into evidence, on account of the ambiguity or uncer - tainty in the proceedings, and because the decree was founded on matter not put in issue by them. This point has therefore been settled in the above case, and in several others determined in the circuit courts in Charleston district, which have never been brought up by appeal to this court ; the parties having acquiesced in the of the juries.
    See ante> P-3ti3.
    
      Parley. -WOodv. Teas* dale'
    
    
      . On the other ground respecting the breach of blockade, it was very clear she ought not to have been condemned. The article in our treaty -with Great Britain expressly declares, “ That such vessels as might be bound to a port or “ place blockaded, may be turned away from such port or “ place, without being liable to seizure or confiscation, un- “ less after notice of such blockade the vessel should again at- “ tempt to enter.” This article is founde'd in justice, as w c las in the nature and reason of things, and is most certainly agreeable to the spirit of the law of nations. It guards against surprise, and is calculated to prevent an innocent neutral from being entrapped by trading to a place where it was previously lawful, not knowing of such blockade. By this article, notice of the blockade, and turning away, or in other words, an order to depart, must precede the attempt to enter a second time ; and no vessel is liable to seizure unless she attempts again to enter a blockaded port, after being warned to depart. Now in the present case, there is no proof of any such attempt to enter after notice to depart; for the conversation between the admiral of the fleet and the captain, was on board of the admiral’s ship, while the captain was not in his own vessel. And it appears, she was sent into Gibraltar only for words which passed in a conversation between them, in answer to . . . . . . , , . a question put by the admiral, “ saying he -would go into “ Cadiz unless he got new ordersbut there is no proof of his ever having attempted it, or having offered to go towards the port afterwards ; so far from that, on the contrary, it does not appear that the captain ever got posssesion of his ship again, so as to have any power over her, as she was immediately ordered away to Gibraltar, and there condemned as a prize to the squadron. So that there was no act done by the captain of the ship, which could subject her to' capture, either by the law of nations, or our treaty with Great Britain. And it is the first time in the history of nations, that ever a valuable ship and cargo were condemned, for bare expressions ox intentions, which were never carried, or attempted to be catted into execution. They admitted, that if the captain had been suffered to have returned on board of his own ship, and attempted to have entered the port of Cadiz afterwards, the ship would have been a lawful prize. But the decree itself does not state that she attempted to enter the port after having been duly warned away ; only that the captain persisted in an intention to enter. That a bare intention to do a thing, or persisting in such intention, without ever attempting to put it in execution, is a nugatory thing ; even in treason, a bare intention without some overt act will not constitute the offence.
   The Judges,

after fully considering this case, were all of opinion, that the presiding judge on the trial, very properly opened the decree of the vice-admiralty court at Gibraltar, and permitted the parties to go into evidence, as the facts stated in the decree did not amount to a justifiable cause of condemnation; and also, because there was ambiguity and uncertainty in the proceedings, the libel stating, that the vessel and cargo were enemies property, and the decree condemning for breach of blockade. It was very clear therefore, for these reasons, that this decree was not conclusive, as was determined in the case of Blacklock and Bower v. Stewart et al. and in several other cases, and as laid down in Park, 353. 356. And from the evidence offered m the , , . case, it appears she was not hable to capture and condemnation, either on the ground mentioned in the libel, or in that of the decree. •

With respect to the cause stated in the libel, to wit, that the ship and cargo were enemies’ property, there was no proof even alleged'that she belonged to the enemies of Great Britain ; on the contrary, it was clearly proved that they were the bona fide property of the plaintiffs, citizens of America, so that on this ground there was not a shadow of reason for condemnation ; indeed, the sentence for breach of blockade seems to admit the fact, by abandoning that ground, and condemning on another of a very different nature. And as to the breach of blockade, the reason assigned in the sentence of condemnation, that seems to be as groundless as the allegation in the libel; for, from the evidence offered on that head, she did not attempt to enter the port of Cadiz after being warned by the blockading squadron. The only evidence relating to that subject, was what passed between the captain and the admiral, on board of the flagship, when the former was under examination, while the captain was in the nature of a prisoner, and when he had no control or command over his own vessel; in answer to a question asked him by the admiral, where he intended to go if he released his vessel, he replied, that he intended to enter Cadiz, unless he got contrary orders ; upon this the admiral ordered his ship to Gibraltar. .

This verbal declaration of the captain to the admiral, in his then situation, was no ground certainly for seizing his ship. The treaty between Great Britain and this country is express on this point: “ That an American vessel sailing 11 to a blockaded port, not knowing of the blockade, shall “ not be detained, nor her cargo (if not contraband) be con- “ fiscated, unless after notice she shall again attempt to en~ “ ter, but shall be permitted to go to any other place she “ may think proper.”

This is a fair exposition of the law of nations on the subject, as it prevents an innocent neutral from semrre and confiscation, who may approach a besieged place, not knowing 0f a blockade. The bare declaration of the master, unaccompanied with any fact corroborative of such 'his intention, was not a ground of seizure; besides, free agency was wanting in the case, to constitute the offence, for he was in the nature of a prisoner, not in the possession or command of his vessel, or having any control over her at the time when these expressions were uttered ; and unless there had been a second attempt to enter into the port of Cadiz, there could be no offence against this treaty. But what is most remarkable in the case is, that the reason assigned in the sentence of condemnation is not an offence against the treaty. She is condemned for persisting in an intention of entering ,- this is no offence under the treaty; it is no cause of seizure ; mere loose parlance, unconnected with any fact. It is evident, therefore, that she was not condemned for any cause justifiable in its nature, or by the law of nations, or by the treaty subsisting between the two nations If the condemnation had been for attempting to enter, after being •warned, it might have been a good cause of capture ; but persisting in an intention alone, is no cause of capture. Therefore the sentence, upon the face of it, if there were no other grounds in the case to open it, would have been sufficient.

New trial refused, and rule discharged.

Present, Guimke, Bay, Johnson, Tkezevant and Bse-VARD.  