
    Lawrence Campbell against John Williamson.
    
      Charleston District,
    
    
      1800.
    
    i.jhvom 'jjl-iti'or5 ¡«xlcompeiL-d ¿>r auoiiiA Ln1v.li'ik' oía ^ vi!I m,t ‘‘X0I>-dervrit.-iv. of tÜo Íiuaoi-j? jv-md _ ovi-|i!,“pcatuoM»1' vessel to bear away or de* part from her trTheiasured have a right to abandon on caPtai*e> aiu* every endca-vour t0 reco-ver ship and cargo after-wards shall be intended for the benefit of tjltí underwriters.
    The only evidence necessary to shew the capture is the protest of the master and mariners, though the condemnation afterwards is undeniable corroborating evidence of the fact.
    CASE on a policy of insurance.
    This was an action on a policy of insurance effected on the brig Russell. From the papers produced, it appeared that this brigantine was bound to St. Vincents or Barbadoes, but her clearances were all for Surinam. She had as part of her cargo naval stores and contraband articles of war on board, all which were known to the underwriters, who received a premium of seventeen and a half per cent, -which covered all }-isks. On her vovege she met with a gale of wind, which obliged her to bciir away ior Antigua^ where she was captured, and vessel and cargo condemned as law-xul prize.
    On the trial, the captain’s protest was produced, by which it appeared that she had been compelled by this gale of wind to bear awav for A/itigua, where she was met with and _ , " , _ . . . .. , _ captured by an armed British privateer cmied the Louisa Bridger, who carried her into the port of St. Johns, where she was condemned.
    The condemnation was also produced* under the seal of 1 % v the vice-admiralty court of Anth'iuu from which it appeared . __ IV, that the brig Russell and cargo nací been condemned %ene- „ ,/*»•, " . . . rally as Icnvjul prizey but no particular or special circum-r , ., i r ■? . stances were set form as the grounas or condemnation.
    
      
      John M. Davis, a broker in Charleston, was produced, who proved that before the insurance was effected, he shew» ed the manifest of the cargo to the underwriters, which contained the warlike stores, &c. and that they were insured at seventeen and a half per cent, which covered all risks. The paper containing the manifest of the cargo, also stated, that the Russell was to sail over the bar in company with the British armed ship the Jane, bound also to St. Vincents, and that the captains had agreed to keep company together.
    For defendant, several grounds were taken on the trial before the jury. 1st. That the grounds on which the vessel and cargo had been condemned, had not been set forth in the condemnation; that the reasons might have appeared to the underwriters, in order to have enabled them to go over against the British government, in case of an unwarrantable condemnation ; which, it was alleged, it was the duty of the plaintiff to have done.
    2d!y. That there was an unnecessary deviation on the-voyage, by the captain going out of his true course; and that the captain’s protest alone was not sufficient evidence to shew that the ship was obliged to go out of her true course ; he should have been examined and cross-examined on that subject.
    And, 3dly. That she ought to have kept company with the ship Jane, who would have protected her against privateers.
    . In reply, it was urged, in favour of the plaintiff, that wherever there was a condemnation on general principles, as in the present case, it was conclusive against all the world; that the ship and goods were enemies property, or had contraband of war on board ; that the insured were under no obligation to produce any other document than the condemnation, to entitle them to a recovery, and that if the underwriters wished for further information for their own satisfaction, it was their duty to have procured it; that the insured have a right to abandon in every case of capture, because then the object of the voyage is defeated, and this was proved both by the protest and the condemnation ; and as to the deviation, that was unavoidable, owing to a heavy gale of wind, as appeared by the protest of the master and mariners; consequently, it was one of the risks insured against, and that this protest of the captain and marinéis was the best evidence of that necessity.
    7J/;/*s XU.
    
    In charging the jury, the presiding judge (Bay) told them, that wherever a vessel and cargo is condemned by the decree or sentence of a foreign court of admiralty general!}’, as lawful prize, or as enemies property, it was conclusive against all the world; that the mutual intercourse of nations made it necessary that this faith and credit should be given to foreign tribunals. But that if decrees were made or given upon municipal regulations only, or upon doubtful or ambiguous principles, or upon principles totally unsupported by the law of nations, in such cases the parties might go into the merits, and shew that the goods were not lawful prize, or enemies property. With respect to the deviation in this case, he said, that was a fact for the consideration of the jury ; that if there was a wilful deviation in the course of the voyage, it would vitiate the policy ; but if a deviation is occasioned by stress of weather, then it was within the risk of the policy. ' That the protest of the master and mariners was before them, and from this it appeared they were obliged to bear away for Antigua. An objection had been taken to this protest, as not the highest evidence ; but, for his part, he could not well see that higher evidence could be procured than that of the master and mariners, of a casualty or event happening on the high seas, where none but themselves could possibly witness the passing scenes or disasters which ships were liable to from storms and tempests. And when it is recollected also, that these protests are always made at the first port the vessel arrives at, after distresses of this nature happen, and while all the circumstances are fresh in the recollections of all on board, and before they could be tampered with by either of the parties interested in the event; it had always appeared to him, therefore, as deserving the highest credit. Besides, it was a sea instrument, not founded on municipal law, but received by the general consent of all commercial nations, from the necessity of the case; and the more especially, as masters and mariners are transient persons, shifting and changing from one part of the world to another, in such a manner as to make it extremely difficult, if practicable at all, to get their examinations after they separate, one going to one part of the world, and others to another, &c.
    The jury retired, and soon after returned with their verdict for the amount of the plaintiff’s demand.
    And now a new trial was moved for, on the ground of misdirection of the judge who tried the cause, and as a finding against law.
    Upon this argument, nearly all the grounds which had been taken on the trial were again urged by the counsel on both sides, and some new ones introduced, which had not been pressed on the trial particularly.
    1st. That the Russell was to sail in company with the ship Jane over the bar, and to keep under her convoy during the voyage.
    2d. That all the papers had not been produced, which should have been shewn on the trial.
    On the first point it was contended, that this representation of the Russell’s sailing in company with the ship Jane, was tantamount to a warranty for sailing with convoy, which, if not complied with, vitiates the policy ; and that the meaning of sailing with convoy, means sailing all the way with convoy ; and that if. the Russell had sailed all the way with the British ship Jane to St. Vincents, she would have been protected ; the captain of the armed ship Jane would have shewn that the clearances for Surinam were only intended to protect her from French cruisers, and that her real place of destination was a British port, which could not appear at Antigua, where she was condemned.
    
      On the second ground u «as strenuously urged, that the protest was not sufficient evidi nee of the necessity of the deviation from the true course of the vo\ age, and that even if it was, all the papers and proceedings in the vice-admiralty court of Antigua were not pro.meed, as one of the articles of the treaty with Great Britain stipulates, that copies oí all papers and proceedings in the vice-admiralty courts shall be furnished, when required; whereas nothing was produced upon the trial but the protest and condemnation, without any other document; that the captain had been very negligent m this particular ; he was the agent for the owners or insured, and they are answerable for his omissions and neglects.
    For the plaintiff, in reply, against the motion, it was said, that admitting that the representation of the insured amounted to a warranty to sail with convoy, yet if the protest of the captain and mariners was evidence, the matter contained in it was of full answer to this part of the argument, as from this it appears they were compelled by stress of w ea-ther to bear away for Antigua',
    
    That as to the ground respecting the omission to produce papers, all that were necessary had been produced. Here it was argued, that the insured was under no obligation to produce even a condemnation; that it had been determined in many cases, and by some recent ones in this court, particularly before Mr. Justice Waties, that it was sufficient to prove the capture, for then the insured had a right to abandon, as the object of the voyage was then defeated, and then the underwriters became liable ; that the protest was full upon this point, as to the capture by the privateer Louisa Bridger, and the carrying in of the Russell into the port of St. John’s ; but the plaintiff had gone further in this case, and proved both capture and condemnation. With respect to the papers alluded to in the article in the British treaty, they were only necessary in case of appeals, and it was for that purpose that copies of all proceedings were to be fur-/ nished, when required. If the underwriters wanted them, it was their duty, not the plaintiff’s, to apply for them.
   The Judges,

after considering this case, were unanimous in opinion, that there should be no new trial.

The opinion of the court was delivered by

Mr. Justice Johnson,

to the following effect:

That upon the first ground taken, that of misdirection, it did not appear to this court there had been any on the part of the presiding judge, in charging the jury on the trial in the district court. All the writers on the law of insurance agree in opinion, that if a decree of a foreign court of admiralty condemn a ship or cargo as lawful prize, or as the property of an enemy, generally, without assigning any rea-, sons, the law of nations will presume they have gone upon just and proper grounds, and it is conclusive and binding on all the world, and never after can be called in question by any of the parties interested. They are bound by it.-

As to the evidence of the protest made by the master and mariners, to shew the necessity of bearing away for Antigua, which is assigned as a justification for the deviation in this case, it has always been allowed in our courts, as proper testimony of any matter or thing happening on the high seas, to go to a jury ; or as proof of the-loss of ship or cargo ; and indeed it would be of infinite loss to individuals, as well as productive of much injury to commerce, if it were otherwise. The reasons given by the judge, in his charge to the jury, are strong and conclusive in point, and perfectly consonant to the lav/ and practice of this country. And although there is a dictum of Lord Chief Justice De Grey’s, in 1 Esp. 143, 144 which seems to doubt on this point, on a loss happening in a port or place where other witnesses could prove the loss as well as the master and mariners ; yet it does not seem to militate against the great principle, as to accidents and disasters at sea, where none can witness them but those on board.

Park) 3481 Marshall^ 279, 2S0

With respect to the new grounds taken on this argument, which were not pressed on the trial, the first was the not keeping company with the convoy. In all cases of this kind, where ships are warranted to sail and keep company with convoy, it is always understood to be wheré it is practicable to keep company With the convoy ; but storms and tempests are exceptions Out of this rule, founded in nature, against which no contract, either express or implied, can protect a man. This storm happened at sea, and compelled the captain to bear away for Antigua, from necessity ; there is no doubt, therefore, but a deviation under such circumstances was excusable. The last additional ground was the non-production of papers ; and here it appeared to the court, that the plaintiff had produced all he was bound to produce bn the trial, in order to entitle him to a recovery; for he had produced the protest of the master and mariners to prove the capture, after he had been compelled by stress of weather to bear away; and the condemnation in the vice-admiralty court after the capture, which, in strictness of law, was perhaps more than he was bound to do. For it is well known, and has beeti often determined, (and very frequently in this court,) that the insured had a right to abandon on the capture ; and the interference afterwards of the captain or master is considered as a benefit intended to the insurers. He is then considered as their agent, and even barratry or misconduct afterwards is chargeable on the underwriters, withifet the true intent and meaning of the policy.

Rule for new trial discharged.

Present, Bav, Johnson and Tsezetan^  