
    
      March Term, 1797.
    Vasse versus Ball.
    THIS was an action on two Policies of Insurance for 28,000 dollars, upon the brig Salmon, and her cargo (both the property of the plaintiff, an American citizen) from Port-au-Paix to Philadelphia, in which these clauses were inferred: “It is declared that this assurance is made only against capture of the British, or any of the subjects of Great-Britain.” “The brig is warranted to be an American bottom; and the cargo of the said brig to be American property.”
    On the trial, the following appeared to be the material facts: The brig, having carried a cargo of flour from Philadelphia to Port-au-Paix, under a contract with Mr. Fauchet, the French Minister, was captured and taken into Bermuda, for adjudication, by a British privateer, on her return to Philadelphia. The captain of the brig wrote to the plaintiff, his owner, stating the capture, and declaring the strongest apprehension, that a condemnation would ensue, as the captors had got possession of the receipt for the flour delivered upon the contract with Mr. Fauchet, and he had been compelled at Port-au-Paix to take on board a French Officer and a few soldiers (who were all invalids) with their baggage and some articles of household furniture, in order to bring them for their health to America. The plaintiff communicated the capture to the defendant, and, in explicit terms, represented the case to be a desperate one; but the defendant, with confidence, declared, chat, as a new Governor had been recently sent put to Bermuda, there would be a change in the administration of justice; so that if the property was node American, it would certainly be acquitted; and, in that confidence, he agreed to insure the vessel and cargo for a premium of ten per cent. At the time of making this agreement, the captain’s letter was not shewn to the defendant; but the evidence raised a strong presumption that it was produced and read to him at a subsequent meeting, before the policies were underwrote. The brig and cargo being libelled in the Vice-Admiralty Court of Bermuda, the libel set forth the following llegations as causes of condemnation;—1st. That the vessel and cargo were French property. 2d. That the vessel was an American transport in the French service, employed to carry flour and soldiers to and from French ports. 3d. That the vessel had been employed in carrying dispatches for the French Government. 4th. That, the vessel had been employed in trading with the enemies of Great-Britain, supplying them with the means of sustenance and of war. And, 5th. That the port from which the vessel came was in a state of blockade.
    The Judge of the Vice-Admiralty pronounced a general decree of condemnation, upon both vessel and cargo, without specifying any particular cause of forfeiture.
    Under these circumstances, Ingersoll and Du Ponceau, for the plaintiff, contended that'they were entitled to shew, that the brig and cargo, were bona fide American property; that if so, the warranty had been complied with; and that no other ground alledged in the libel was a just cause of capture and condemnation to discharge the underwriter. It is true, that the ancient cases say, generally, that foreign judgments are conclusive, without distinguishing between the judgments of Courts of Admiralty, and of other Courts; but modern adjudications have more accurately settled, that a foreign judgment shall be deemed prima facie evidence, but, like all other evidence, it is liable to examination. Doug. 6. 4 T. Rep. 493. Bull. N. P. 245. 2 Show. 232. (Leach’s Edit. in not.)
      
       The sentence may justly be conclusive between those who are parties to it, and must ex necessitate, be conclusive upon the subject to which it immediately applies: but it ought not to be binding on third persons with collateral interests; nor upon, objects which it never contemplated. There has been a great fluctuation in the English decisions upon points of commercial law. The insurance of enemy’s property has, at one time, been held lawful; but Lord Mansfield’s decisions on that point, have been recently over-ruled. Parke 239 (last Edit.) And it is well known, that the English courts of Vice-Admiralty do not decide according to the Law of Nations, but according to the instructions of the Crown. But there is not, in fact, any judicial determination of the English Courts, antecedent to the American revolution, which declares, that the sentence of a Court of Admiralty cannot be examined and controverted between persons who were not parties to it. The case of Bernardi v. Motteux, Doug. 554. occurred since the revolution; it has, therefore, no obligatory influence; and it carries the doctrine, respecting the conclusive character of a sentence in a foreign Court of Admiralty, to an extent So extravagant, that American tribunals should be well convinced of the reason and justice of the position on which it turns, before they voluntarily acquiesce in the decision. Besides, this is not a question of English municipal law, in which the judgment of an English Court must be respected as evidence of the law: but it is a question arising on the Law of Nations; and if there is a diversity of opinion in the Courts of different nations, every nation is at liberty to examine the principle. Thus, then, it has been determined in France, that the sentence of a Court of Admiralty is not conclusive in a controversy between the underwriters and the assured. Emerigon (a writer celebrated even in Westminster-Hall) says: "ll est done certain, que les assureurs repondent de la confiscation injuste prononcee par le Tribunal du lieu ou le navire pris a éte conduit. Les jugemens rendus par les Tribunaux etrangers, ne sont en France d aucun poids contre les Francois, et qu’il faut que la cause y soit de nouveau decidee. D’ou il suit, que le jugement de confiscation prononcé par un Tribunal ennemi, n'est ni une preuve que le veritable pour compte ait été caché, ni un titre que les assureurs puissent aliéguer pour se dispenser de payer la perte. Telle est notre jurisprudence." 1 Emer. 457.8.
      Great Britain, as an underwriting nation, has an obvious interest in maintaining a contrary, doctrine; but, as the policy does not apply to the situation of America, the practice ought not to be adopted.
    Even, however, if the sentence of a Court of Admiralty were to be considered as conclusive as the strongest of the English cases can justify, the present cause would not be affected; for, it can only be conclusive upon what it appears to have decided; and it is impossible from the present decree to ascertain the ground of condemnation. In that respect, this cause is analogous to the case of Bernardi v. Motteux. Doug. 555; the general warranty being there as forcible, as the additional clause in the policies now controverted. Under every warranty, then, the only question is, what the parties meant? Parke Ins. 410. 392. 3. 4. 5. 492. Ib. 361 (last Edit.) Here, they plainly meant, that, if the property assured was American, the underwriters should be bound to pay. But, it is answered, the libel 
      alledged the property to be French, the condemnation, is general, and the decree is conclusive. It must be observed, however, that the libel alledges more; and, that the allegations are in direct contradiction to each other; for, if the vessel and cargo were French property, they could not, likewise be, as all the other allegations import, American property; and when the plaintiff can shew, that it was impossible the decree should be on the ground of French property, it must be presumed to have proceeded on the other grounds stated in the libel. As to those other grounds, it is enough cursorily to observe, that the defendant has in vain endeavored to prove, that the vessel was employed in a trade with the French islands, not permitted before the war; that the transportation of a few, unarmed invalids, cannot be denominated contraband; nor will their personal baggage and furniture come within the description of the cargo; Parke Ins. Bunb. 232. Stra. 943. 1 Dall. Rep. 197 and that the rest of the allegations are not causes of condemnation upon any principle of the Law of Nations.
    The defence was supported by Lewis, E. Tilghman & Rawle on three grounds: 1st. That there was a concealment from the underwriter of the facts, known to the assured, that flour had been exported in the vessel for the French minister, and that there were French soldiers and their property on board at, the time of the capture. 2d. That the warranty had not been literally fulfilled, as a part of the property on board was French, and furniture must be considered as part of the cargo; and it is immaterial, whether the loss is owing to a breach of the warranty, or not, if the warranty has not been strictly complied with, even in a trifting circumstance; a fortiori in a circumstance of such importance. Parke Inf. 318. 1 T. Rep. 345;. 3 T.Rep. 360. Cowp. 607. 3d. That the sentence of the Court of Vice-Admiralty is conclusive. Whatever was meant to be decided, shall be forever rest, Parke Inf. 354. Doug. 544. And, in a great variety of cases, it is held, that when there is a warranty of neutral property, and the condemnation is general, the decree shall be conclusive; which is, likewise, the law, when the sentence is given on the very point of the warranty. 2 Stra. 743. Skin. 593 Show. 232. T. Ray. 473. Carth. 34. Salk. 32.
    
      
      
         M'Kean, Chief Justice. The idea that a sentence of a Court of Admiralty is conclusive, arises from this consideration, that the Court always proceeds in rem. The decree naturally and necessarily binds the subject of the proceeding, a ship, or cargo; and any person purchasing under the decree will of course, be secure.
      
        
        "It is certain, that the underwriters must be responsible, in the case of an unjust confiscation, pronounced by the tribunal of the place, to which the captured vessel has been conducted. Judgments rendered by foreign tribunals are of no weight in France, against Frenchmen; and the cause must there be decided de novo. Hence, it follows, that the sentence of confiscation pronounced by the tribunal of an enemy, is neither a proof that the real owner has been concealed; nor a title which the underwritere can alledge, to avoid paying the less. Such is our law.”
    
    
      
       Shippen, Justice. The strongest case on the question of a cargo, is that in Bunb. 232. I remember that before the revolution, there was a seizure of a Palatine vessel with passengers, on account of the baggage ; but I acquitted her on the authority of that case.
    
   M‘Kean, Chief Justice.

The same difficulty, that occurred in the case of Bernardi v. Motteux, Doug. 555, certainly occurs in the present case:—how is the ground of condemnation to be ascertained ? The libel asserts in one place, that the property is French; in another place, that it is American; and the several statements, that the vessel was employed in assisting, or supplying, the French, also imply that it belonged to a neutral owner. The decree, however, is general: but can we impute to it, the absurdity of meaning to decide, that the vessel and cargo were, at the same time, neutral and enemy property?

Shippen, Justice.

If the libel had confined itself to alledge, that the property was French, and the decree had been general; or, if the decree had specifically selected and stated that allegation, as the ground of condemnation, I should have been strongly inclined to think, that we were bound by the decision. But the object of the present enquiry is, to ascertain for what cause the vessel and cargo have been confiscated ?

The counsel for the defendant, perceiving the biass of the Court so much against them, declined pressing any further the argument in support of the binding nature of the decree of condemnation; and left their case to the Jury, simply upon the plaintiff’s alledged concealment of the information contained in the captain’s letter, communicating the capture of the vessel. The opposite counsel having, thereupon, proved that the plaintiff was an American citizen, and sole owner of the vessel and cargo, the following charge was delivered by the Chief Justice, after a general recapitulation of the facts :

M‘Kean, Chief Justice.

The first ground of defence attempted to be taken on this occasion, is; that the vessel was engaged in a trade with the French islands, which, as it was not permitted by the French government previously to the war, Great Britain, it is said, had a right to deem unlawful, and to construe into a violation of our neutrality. The fact has not been established : But, if it had been established, I could not accede to the conclusion, which the defendant’s counsel contemplated. I cannot conceive, upon what principle, our accepting a benefit is to be converted into the perpetration of a wrong. What injury can be done to any belligerent power, by our sending the exports of America (not of a contraband nature) to a new market ? Where is the cause of offence ? In what consists the infraction of neutrality ? We are not actuated by motives of partiality and favoritism; for, we are willing, of our own accord, to pursue the same course with Great Britain, as well as France; and we find that, in fact, the colonial governments of Great Britain often invite us, during a war, to an intercourse in trade, which is, at other times, absolutely interdicted. We cannot prevent another nation from offering a bounty to our commerce, by opening a free port, or by relinquishing its duties; and when we merely accept these advantages, on a principle of self-interest, why shall we be charged with a breach of our neutrality ? No: The rule, on the point of neutrality, is just and clear: It is simply this:—If two nations are at war, a neutral power shall not do any act, in favor of the commercial, or military, operations of one of them; or, in other words, it shall not, by treaty, afford a succour, or grant a privilege, which was not stipulated for, previously to the commencement of hostilities.

The second ground of defence, is founded on the capture and condemnation of the vessel at Bermuda. It is urged, that the libel states the property to be French ; and that the decree being general, affirms that allegation. But the libel consists of five charges ; and if the charge of French property is affirmed, the other four, which stand precisely on the same footing, must be arbitrarily excluded; since, under different modifications, they alledge the property to be American. It is impracticable, therefore, to fix the precise cause of condemnation by an inspection of the record itself; but, we are clearly of opinion, that, under such circumstances, evidence may be received to establish the American ownership, in conformity to the warranty; As, then, the proof leaves no doubt on the question of ownership, we cannot presume that the Judge of a foreign Court has perjured himself, by declaring that property to be French, which we know to be American ; and, of course, we must assume the position, that his decree proceeded upon the other allegations of the libel. Those other allegations do not furnish any cause for cancelling the policies in the present case, either in relation to the express warranty, or to the matter charged. An American citizen may lawfully, at any time, carry flour, and other articles of provision, or dispatches, for a French minister, from an American, to a French, port.

The third ground of defence states, that there was a concealment of some material facts, in regard to the risque, which were known to the plaintiff at the time of the defendant’s undertaking the insurance;—such as the outward transportation of a cargo of flour for Mr. Fauchet, and the homeward accommodation of French soldiers, with their baggage. If this statement is correct in point of evidence, the law arising from it is certainly in favor of the defendant. But the weight of the testimony does not seem to support it. There can be no imputation of concealment, where each party had an equal opportunity of acquiring a knowledge of the fact; and there is strong reason to believe, if not direct evidence to shew, that the plaintiff gave the defendant that opportunity, by placing in his hands the captain’s letter, reciting all the circumstances. If the defendant then refused, or neglected, to read the letter, it cannot now be assigned as a cause for vitiating the policies. Besides, if all the circumstances had been perfectly understood, there was nothing which any lawyer would have pronounced to be illicit in the trade. The cargo of flour was at the risque of the plaintiff, till it was actually delivered ; and I have never heard of any law, in any civilized nation, that deemed it contraband, or unlawful, to carry a few, unarmed, invalid soldiers, to a neutral country, in pursuit of health and refreshment.

A fourth ground of defence has been taken, upon this consideration, that the household furniture of the passengers came within the description of the cargo of the vessel; and, therefore, the warranty had not been strictly performed. I confess, that I agree in the general idea, that household furniture cannot be regarded as baggage, and must constitute a part of the cargo ; but still, to admit this exception, under the peculiar circumstances of the shipment, would be too indulgent to a harsh and captious spirit of litigation; nor, throughout the history of Admiralty proceedings, can there be traced a single instance of condemnation, for such a cause.

Upon the whole, it is our opinion, that the plaintiff is entitled to recover the amount of both Policies.

Verdict for the Plaintiff. 
      
      
         At the close of the charge, Tilghman claimed leave to tender a bill of exceptions, because the Court did not direct the Jury, in point of law, to consider the decree as conclusive.
      By the Court :—We do not say what would have been our opinion, if the decree had expressly condemned the property as French: but, in its present state, we do not think it conclusive, to prevent evidence that the cargo was actually neutral.
      The defendant afterwards moved for a new trial, but it was refused. He then brought a writ of error; but, on the 13th of July 1797, the judgment, entered in pursuance of the verdict, was affirmed.
     