
    Lemuel Sawyer & Others versus The Maine Fire and Marine Insurance Company.
    A decree of a court of admiralty in the island of Hayti not founded upon a libel, and in which no trial was had, condemning a vessel and cargo belonging to citizens of the United States, for an alleged breach of blockade, was holden not to be conclusive evidence of that fact.
    Where, upon a sale of a vessel of the United States, under a decree of the court of admiralty in a foreign country, the master of the vessel purchased her on his own account without any previous authority or posterior assent on the part of the owners, the underwriters cannot avail themselves of such purchase, to reduce the loss from a total to a partial one.
    This was an action of the case upon a policy of insurance, dated March 20th, 1812, for $6000, upon the brig Lydia, valued at $7000, at and from Portland to one or more ports in the West Indies, and at and from thence to her port of discharge in the United States, against capture and condemnation only. The plaintiffs declared for a total loss by capture, in the first count, by a vessel unknown belonging to citizens of Hispaniola ; and, in the second count, by pirates, rovers, &c., on the 19th of April, 1812.
    On the trial before Putnam, J, at the sittings here by adjournment of the last October term, it appeared that proof of the loss was made, and an abandonment offered, on the 14th of May, 1812. The policy and interest were admitted.
    The plaintiffs proved, that, at the time of making the insurance, it was stated to the defendants that the vessel was bound to Port au Prince. They also read the deposition of Elisha Sawyer (a copy of which came up in the case), stating that he was master of the said vessel on the voyage insured ; that, on arriving in sight [*292] of Port au Prince, he was * hailed by an armed brig be longing to the King of Hayti, and ordered to come on board. The captain then informed the witness that he was fighting against Petion, who had possession of Port au Prince, that the King of Hayti wanted his provisions, and that if he, the witness, would go to St. Mark's, he should have a good price for his cargo ; but that, if he refused, he should send him. On the witness’s refusing, a prize-master and five men were put on board the' brig, and an armed schooner accompanied her to St. Mark's. On his arrival there, he was ordered on shore, and was carried before the Prince Gonaive, who said he wanted the cargo, and would pay the witness for it. The prince then, ordered the sails taken from the brig and brought on shore, and twelve men were placed on board. The witness then went on board the vessel, and on the third day after was, with all his crew, ordered on shore ; and being carried before the minister of justice, so called, he read to them a condemnation of the vessel and cargo. The next day the vessel was sold, and the cargo taken out and put into the King’s warehouse. The vessel was purchased by Messrs. Dodge and Myers, of Philadelphia, for the master, at the price of $ 4000, and he went in her to Philadelphia, where he sold her. He had never heard of the blockade of Port au Prince before his capture. The King of Hayti and all his officers were blacks, except his Majesty’s interpreter, who was a mulatto. The principal facts in the master’s deposition were confirmed by the testimony of the mate of the vessel. The defendants produced a copy of the condemnation, which came up in the case, and contended that it thereby * appeared that the brig was condemned for [ * 293 ] a violation of the blockade of Port au Price, by the Emperor of Hayti, and that the decree was to be considered as conclusive evidence of the facts thereby decided.
    There was no evidence that Port au Prince was in fact blockaded at the time of the capture, other than what arises from the said decree of condemnation. Nor was there any evidence that the brig was notified of any blockade, or warned not to enter for that cause, prior to the capture. The collector of the customs for the district of Port land testified, that, since the expiration of the law of the United States prohibiting intercourse with St. Domingo, many clearances had been made from the United States for Port au Prince, and many clearances from Hayti to the United States. It was in evidence, that Christophe, or Henry, was the sovereign defacto of Cape Frangois and of that part of the island ; and that Petion was the sove- [ * 294 ] reign de facto of Port au Prince ; * that Petion and Christophe are at war with each other, each declaring the other to be in rebellion against France; but each claiming to have authority in his own dominions ; that they have their customhouses, and custom-house officers ; and ships of many nations, English, Spanish, American, &c., trade there, and business is regularly transacted ; that the United States have had a consul at Cape Frangois, since the government has been in rebellion against France ; particularly, that Colonel Lear was consul there when Toussaint was regent ; that protests, decrees, and other proceedings of the admiralty courts from Cape Frangois are frequently seen in the United States ; and that a proclamation of the blockade of Port au Prince by Christophe, or King Henry, was published here in June, 1812.
    The defendant further contended, if the decree of condemnation in this case was not conclusive, or did not prove that there had been a violation of blockade, that the purchase of the brig by the master wás for the benefit of the owners, and in the nature of a ransom ; and, therefore, that in any event the defendants were not liable for more than a partial loss.
    The plaintiffs replied to this, that the vessel was not bought for their account, and that neither the vessel nor the proceeds thereof had directly or indirectly come to their hands or possession. And there was no evidence produced by the defendants to controvert that statement.
    The plaintiffs objected to the admission‘,of the decree of condemnation, as conclusive evidence of the facts it decided ; contending that Henry, and those under him exercising the government of Cape 
      
      Francois, were rebels, and their.proceedings not to be regarded as the acts of civilized nations ; and further, if they were so received, yet that there had been no decision, which necessarily involved the brig Lydia in the violation of a blockade.
    The judge, intending to reserve the questions of law in the case, overruled the objection, and, for the purpose of the trial, instructed the jury, that the decree must be considered * as conclusive evidence that the vessel was condemned for [* 2953-violation of blockade.
    The jury accordingly returned a verdict for the defendants, which, was taken subject to the opinion of the Court in the premises. If that opinion should be, that the said decree does decide and is conclusive evidence of a violation of blockade by the vessel, the verdict was to stand ; otherwise, the defendants were to be defaulted, and: judgment was to be rendered for a total or partial loss, in such sum. as, upon the facts before stated, the Court should determine the plain?tiffs ought to recover.
    The cause was argued by Longfellow and Emery, for the plaintiffs,, and by Mellen and Whitman, for the defendants ;
    and, being continued. nisi advisement, judgment was rendered at the following September term in Berkshire.
    
    
      
       "KINGDOM OF HAYTI.
      “ Brig Lydia.
      
        "Extracts from the Minutes of the Register of the Court of Admiralty, sitting at St. Mark's, in the Province of the West.
      “ Henry, by the grace of God, and the constitutional law of the state, King of Hayti, sovereign of the isles of Torgue, Connives, and others adjacent, destroyer of tyranny, regenerator and benefactor of the Haytian nation, creator of moral, political, and warlike institutions, first crowned monarch of the New World, defender of the faith, founder of the royal and military order of St Henry, &c &c.
      
        "The Court of Admiralty, sitting at St. Mark's, have seen the papers produced by the King’s advocate, relative to the American brig Lydia, Captain Elisha Sawyer, despatched from the port of Portland, in the United States of America, for the port of Port au Prince, in the Province of the West, in this kingdom. Which papers are ; [1. The registry of the brig Lydia. 2. The invoice of the cargo. 3. A letter of the owners of the cargo to the consignee at Port au Prince. 4. The despatch of Monsieur De Villanceauz, knight of the royal and military order of St. Henry, post-captain, commanding the division of his Majesty’s squadron blockading the port of Port au Prince, to his Excellency the Count of Lemonade, secretary of state and minister of foreign affairs, announcing the capture of the Lydia, appearing in sight of Port au Prince, and making sail to enter that port. 5. The procbs verbal of the master of the brig Lydia. 6. Finally, having seen the proclamation of the 30th of December, 1810, the seventh year of the independence of Hayti, which declares all the ports in the possession of the rebels in the West and South of this kingdom to be in a state of block ode, and orders all admirals and naval officers of the nation of Hayti to take and capture, until the extinction of the revolt, all merchant ships of whatever nation, that attempt to enter any such port, &c., that they may be judged and condemned, according to the law of nations, and the principles in like cases acknowledged by civilized nations.]
      
      “ Considering from the said papers it results that the brig Lydia was despatched with provisions [approvisionnement de bouche] for Port au Prince; that it is notorious that the city of Port au Prince is yet in open rebellion against the legitimate authority, and has been constantly in a state of blockade since the 30th of December, 1810, until this day, by sea ana land; that the said brig Lydia hath been captured before Port au Prince, making sail to enter there, past the squadron of his Majesty, blockading said port; the Court, doing justice to the requisition of M, the King’s procurer, &c., declares her to be a good prize ; orders the sale of the vessel and cargo, and a division of the proceeds of the sale, between the state, and the officers and crews of the squadron, with the reserve, nevertheless, of his Majesty’s rights. Thus judged and pronounced in court, in presence of M.. the King’s procurer, by us, counsellor, seneschal, civil, criminal, and police judge, performing the functions of judge of the admiralty, in the absence of the Titulaire, assisted by our lieutenant, and by M. Michel, register, at St. Mark's, the 21st day of April, 1812, the ninth year of the independence of Hayti and the second of the reign of his Majesty. Thus signed in the presence of. &c. — His Majesty, having taken cognizance of the present judgment, approves of it, and orders that it be executed according to its form and tenor. At the royal palace of St. Mark’s, the 24th of April. 1812, ana of our reign the second. Henry. —And countersigned below by The Count de Lemonade."
      
    
   Parker, C.

J. The decree offered in this case, as conclusive evidence of a violation of blockade by the vessel insured, cannot be held so to operate. Indeed, it may be doubtful whether it ought to have been admitted at all.

Waiving all question as to the character of the government, under which the seizure of the vessel and the decree of forfeiture took place, it certainly is essentially defective when attempted to be applied to this contract of insurance.

For it does not appear that any libel was filed, any monition issued, any hearing had, or that any of those formalities had taken place, which are necessary to give a conclusive operation to decrees of foreign courts. For aught that appears from the copy of the proceedings before us, the forfeiture was decreed by mere arbitrary power, without any trial ; and that some of the forms of justice, used in civilized countries, had been assumed, without any regard to the substantial requisites of a judicial inquiry.

Considering the decree, then, as not conclusive, the facts, which it purports to establish, are abundantly disproved by the other testimony in the case ; so that the seizure of the vessel must be taken to have been an act of unjustifiable violence, for which the underwriters are undoubtedly answerable.

[*296] * The question, which the Court thought required time for deliberation, relates to the purchase of the vessel made by the master at the sale ordered by the government, which caused her to be seized.

The counsel for the defendants have contended, that the purchase must be taken to have been for the benefit of the assured, and that the effect of it is to confine the plaintiffs, in their recovery, to the sum paid for the vessel by the master. The case of Havelock vs. Rockwood , cited in support of this argument, decides, that, where the owner has purchased his vessel, and will not abandon her, he shall not recover for a total loss, even after a hostile capture and a sale of the vessel after condemnation.' The same principle has been adopted with us, in the case of Oliver vs. The Newburyport Insurance Company.

But in those cases the former owner had reacquired possession oí his property, and was considered as holding it by his original title. It has not been decided, that, when a total loss has happened within the terms of the policy, the right to abandon shall be divested by an unauthorized purchase of the master, avowedly made on his own account, and not on account of the owners. Perhaps the owners may / reclaim their vessel, purchased under such circumstances, having a right to consider the master as their agent. But, unless they had given previous authority, or had subsequently ratified his act by accepting the vessel, they could not be obliged to relinquish their claim upon the underwriters for a total loss.

In this case, there is no evidence of any authority given to the master to purchase, or of any assent of the owners after they knew of the purchase. On the contrary, it is testified, that he purchased entirely on his own account, and afterwards sold her for his own benefit.

We see no ground, therefore, for confining the plaintiffs to a partial loss ; they having seasonably abandoned, upon information of the fact, that the vessel was seized and the voyage broken up.

Defendants defaulted. 
      
       The sentence of a prize court is binding, although it appear on the face of the sentence that the prize court arrived at the conclusion through the medium of rules of evidence and rules of presumption established only by the particular ordinances of their own country, and not admissible on general principles. Bolton vs Gladstone, 3 East, 155. — 2 Taunt. 85 — Barring vs. R. Ex. Ins. Co., 5 East, 99. — 1 Phil. Ev. 348 — 2 N. Rep. 489. — 3 B. & P. 216, 526, 545. — Hughes, 313.
     
      
       8 D. & E. 268
     
      
       8 Mass. Rep. 402.
     