
    Blacklock & Bower, against Thomas Stewart et al.
    
    
      Charleston District,
    
    1802.
    Jf a ship or vessel he li-belled in the court of vice-admiralty a.broad on one ground, (as for being enemy’s property,) and eon-demnedon another ground, (as breach of blockade,)lhis is such uneer* taintyand ambiguity as -will be a good ground for opening such foreign decree, and to suffer the par-lies to go into evidence on both sides.
    No such decree is conclusive, but is re-examinable for uuce-tainty on tin face of the proceedings.
    CASE on a policy of insurance. Verdict for plaintiffs. Motion for a new trial.
    This was an action on a policy of insurance on the brig Susannah and cargo, on a voyage from the port of Charleston to Cadiz. The vessel proceeded on her voyage till she was near the place of her destination, when she was boarded by an English privateer called La Mouche, and sent into Lisbon. The brig’s papers and documents were afterwards sent to Gibraltar, where she was libelled and condemned as a prize to the captors, on the ground that the captain of the brig had attempted to enter the port of Cadiz after due notice that the port was blockaded by a squadron of the British fleet.
    The jury, after a full investigation of this cause, under the direction of the presiding judge, ( Johnson,) who tried the cause, found a verdict for the plaintiffs.
    And this was a motion for a new trial, on the ground, first, that the judge who tried the cause had misconceived the law of blockades, and had misdirected the jury on that head ; and, secondly, that he permitted evidence to go to the jury which went to impugn or contradict the decree of the vice-admiralty court at Gibraltar.
    
    Mr. Desaussure and Mr. Ward, on the part of the underwriters, in support of the first ground,
    contended, that the right of blockade was secured to every nation in time of war by the jus gentium. All states, both ancient and modern, had at all times both claimed and exercised this right of preventing neutrals from entering into a city or town besieged, either by land or water, or to carry any thing to the besieged without the permission of the besiegers. Vattel, b. 3. c. 7. s. 117. Rob. Adm. Cases, 154. By the 18th article of the treaty with Great Britain, the rigour of the law of nations is relaxed with America so that if aa 
      American vessel should attempt to enter a port blockaded, besieged or invested, not knowing of such blockade, such v’esse^ shall warned and turned away without detention, unless after such notice she should attempt to enter again. That in the present case, it was alleged and stated in the pleadings, that the brig Susannah did approach the port of Cadiz in Spain, while a British squadron of ships was blockading that port, in order to prevent supplies going in to the enemies of Great Britain ; and that she had been duly warned thereof, agreeably to the terms of the said treaty; bitt that in defiance of such warning, she did again attempt to enter the said port a second time, when she was captured as a lawful prize and condemned.
    Upon the second ground, they urged, that the decrees or Sentences of foreign courts of admiralty were not to be contradicted, but were conclusive and binding on all the world ; and unless they were so, it would render the property of all the captures in the world fluctuating and uncertain. It is, therefore, a well established rule of national law, that these sentences were conclusive and binding on all persons interested or concerned. Doug. 554. Park, 356. 359. The admission of any evidence, therefore, in any degree to call in question, or render invalid such a decree, was against the general and well established rule of the law of nations.
    That on this trial, such evidence had been permitted to go to the jury, which in effect rendered this condemnation nugatory ; on both these grounds, therefore, they contended., that the court ought to order a new trial.
    The Attorney-General, and Mr. Parker, in reply,
    admitted the doctrine and law of blockades as laid down by VatteJ, and other writers on the law of nations quoted by the opposite party. They also admitted the conclusive nature of decrees and sentences in foreign courts of admiralty, as being binding on all parties interested, except in cases where there is such obscurity or ambiguity in the proceedings, as to render it doubtful or uncertain, on what ground such decree is founded. Park, 366. In all such cases, they said, the decrees of foreign courts were open on both sides of the question, and the parties were at liberty to go into the examination of witnesses, to see how far such decisions were in conformity to the law of nations, or not ?
    In this case, they urged, that the libel and decree were at variance with each other, as would appear by an examination of them, a copy of which had been duly certified from the vice-admiralty court at Gibraltar. That the libel appeared to charge the brig and cargo to belong to the enemies of' Great Britain, and therefore liable to seizure and condemnation ; and the decretal part of the proceedings, was for attempting tp enter a blockaded port, after being duly warned of a blockade by a British squadron of ships ; and concluded with condemning her as a lawful prize to the privateer ; so that here is such a manifest contradiction upon the face of the proceedings, such ambiguity and uncertainty, that no man could tell upon -which ground she really was condemned, nor to whom she belonged as lawful prize. The point put in issue by the libel, was enemy's property or not ? But the condemnation was for attempting to enter a blockaded port, which was not put in issue ; and the final sentence was, that she was condemned as a prize to the privateer and not to the blockading squadron, which is a glaring inconsistency in itself. It was admitted, that if the brig- and cargo had been libelled and condemned for a breach of blockade as a prize to the blockading squadron, or if she had been libelled as enemy’s property generally, to the privateer, that in either of these cases, the condemnation would have been conclusive, but from aught that appears on these proceedings, no man can tell, with any kind of certainty, on what ground she really was condemned ; for it is evident she was libelled on one ground, and condemned on another ; and this creates such an ambiguity or obscurity, as leaves an opening for the parties on both sides, to go into evidence to support or defend themselves against the allegations contained in the libel. The law is clear, that if the sentence of a court of admiralty proceeds opon matter not put in issue before the court, it may be opened, and evidence admitted on behalf of the parties. Park, 353. 366. It was upon this ground, therefore, that the presiding Judge opened this decree and permitted the parties to go into evidence ; when it appeared, from copies of the depositions taken in the case, and from other unquestionable testimony, that the port of Cadiz, had been some time before blockaded by a squadron of British ships, but the fleet had been blown off, or for some reason or other had left the s tation. That the privateer after the fleet had gone off, gave information of it to the captain of the brig, but as there was no squadron of king’s ships off the harbour at that time, the captain of the brig did not think proper to alter his port of destination, and was proceeding towards the harbour when she was captured by the privateer who sent her to Lisbon. Upon this point, the judge in charging the jury, told them, as long as the squadron of ships were off the port of Cadiz watching the motions of their enemy, it was lawful for any part of that squadron, after due notice agreeably to the treaty, if the brig attempted to enter the port afterwards, to capture and make a prize of her ; but if such blockading squadron had left the station, for any cause whatever, and there were no ships of war left, it was lawful for a neutral to enter, and no single private armed ship or vessel had a right to stop or capture her.
    That a constructive blockade, or a bare proclamation or declaration of an admiral, or other commanding officer, de-daring a port to be in a state of blockade, without an actual force being stationed against it, was not a blockade within the meaning of the law of nations, but an arbitrary and illegal measure, unauthorized by any principle of national law whatever.
    Upon the second ground, that of the property being neutral, it was proved beyond all doubt that the property of the brig and cargo was bona jide American property, belonging to the plaintiffs who were merchants of respectability in Charleston.
    
    
      Upon this evidence, the jury, without any hesitation, had found a verdict for the plaintiifs, which the counsel said they presumed the court would not disturb or call in question.
   The Judges,

after duly considering this case, were unanimously of opinion, that the new trial should be refused. The opinion of the court was delivered by Mr. Justice Waties, and is substantially as follows :

The question before us, is not whether the sentence of a foreign court of admiralty founded on a lawful ground, may be opened ; there can be no doubt as to this point. If the ground on which the sentence proceeded, is valid by the law of nations, and it is set forth with sufficient certainty, we are bound by it, however partial or insufficient the proofs may have been ; but all the authorities quoted, shew, that where the real ground is uncertain, evidence may be admitted to ascertain this, and of course the truth of the ground may be again examined.

This sentence states the ground of condemnation to be a breach of blockade, but the libel alleges as the only ground of confiscation, that the vessel and cargo are enemy's property. The sentence, therefore, proceeded on matter not in issue ; for, although the monition charges the breach of blockade, yet the libel does not allege it, and the owners were only bound to answer the allegations contained in the libel; because, it is this part of the proceedings in the admiralty courts which contains all the grounds of confiscation and forfeiture, against which, the owners are bound to defend themselves.

It is analogous to a declaration at common law, which contains every matter which a defendant is bound to answer or plead to. It may be said, that this is a rigid construction, and it has been argued, that some indulgence ought to be shewn to the informalities of these inferior admiralty courts. I am not disposed to shew any indulgence to the late proceedings of the British prize courts. I will irfcejy. confess, that I had rather seek for some circumstance in a case like this, to justify me, in refusing to give effect t0 t|le sentence which has been given in this case, if it was necessary. During the late and present war between Great Britain and France, the commerce of the United States, was for a long time the common prey of the ships and privateers of both these powers, and still continue to be so. It was not so surprising that the French should plunder us, as for a long time they robbed indiscriminately, and seemed to think that the whole world was subservient to their use; but what excuse is there for a nation who professes to love justice, and to vindicate the rights of other nations ? Who would have supposed, that Great Britain would have permitted corrupt and unprincipled courts to assist the rapacity of her cruisers, and to make plunder a system ? One belligerent, may indeed, prohibit any intercourse with places belonging to another, which are besieged or blockaded ; but the extravagant assertion of this right by Great Britain, was an unwarrantable obstruction of the trade of neutral nations, and a violation of their independence. How preposterous was it to attempt to blockade the whole European coast, from the Texel to the Mediterranean, besides all the islands in the West Indies, belonging to her enemies ! and this was not more preposterous than wicked. She had a right to employ means which might compel her enemy to yield to just and safe terms, but an attempt to starve a whole nation could never succeed. It was a thing obviously impossible, and was therefore unwarrantable and unjust; it could only produce a partial distress instead of putting an end to the war, have the effect of increasing the exasperation of her enemy, and making his resistance more obstinate and determined. In a case, said to have been tried before Lord Kenyon, some time ago, in which the sentence of a foreign court of admiralty was pleaded, and a cause of condemnation stated, which if true was valid ; be went the length of saying, “ that notwithstanding the rule that “ such foreign sentence was conclusive, yet as it was noto- “ rious, that the proceedings of the French courts were u founded on the most outrageous and unjust pretencés, he ei thought it deserved to be considered, whether the grounds “ should not be re-examined.”

We should be equally warranted in saying the same thing of some of the sentences of the British vice-admiralty courts ; but the grounds in this case were sufficiently open to examination, without departing from the ordinary rule. The libel states one ground, and the decree another ; we may therefore fairly inquire how far either was supported. If, as the libel states, the brig was enemies'1 property, this does not discharge the insurers, as there was no warranty of the property ; but this was not attempted to be proved on the trial, and the sentence does not state it to be so. If, on the other hand, the ground of condemnation was breach of blockade, there was no evidence of this fact. The only notice of a blockade was given by the privateer, which After-wards captured the brig ; and, from the evidence which has been read, there is reason to believe that there was no fleet or public vessel of war off the port of Cadiz at the time j and indeed the decree itself proves there were none, for the property is condemned for the use of the privateer, and not for the use of the blockading squadron, which, conformably to the British prize acts, it would have been if any fleet had then been upon that station. Upon either ground, therefore, the condemnation was .unwarrantable, and the insurers are liable.

Rule for new trial discharged.

Present, Grimke, WatieSjBay, Johnson, Tres&evant and Brevard.  