Vandenheuvel v. United Insurance

The principal inquiry in these causes, is, respecting the effect of a foreign condemnation, the property in the goods condemned, being intended in the insurance of them as neutral; whether the condemnation is not conclusive against the assured ? This question has heretofore come before us, but until the arguments which have taken place in the present cause, it does not appear to me to have been so fully examined as the difficulty and importance of jt require*

A condemnation may be viewed, as consisting in its cause and in its principles, as to be discriminated from each other; and the principles may be divided into those which relate to the law, and those which relate to the fact, comprehending in the fact the proofs.

The distinction between the cause and the principles of a condemnation is exemplified in a case read on the argument from a late English reporter, 7 Term Rep. Geyer v. Aguilar, where one of the judges distinguishes between them as here intended; he expresses himself: " The ground on which the courts in France proceeded, was, that this was a capture of enemy’s property, and it certainly is not contrary to the law of nations, to condemn a ship on that ground. Whether or not those courts arriyed at that conclusion by proper means, I am not at liberty to inquire,” &c. which is equally as if he had said, the cause of the condemnation, as declared by the'courts in France, is, that the ship was enemy’s property j and which is a sufficient cause of condemnation by

Insurances may be divided into general and special. A general insurance, is where tire perils insured against, are such as the law would imply from the nature of the contract of a marine insurance considered in itself, and supposing none to be expressed in the policy. A special insurance is where, in addition to the implied perils, farther perils are expressed in the policy ; and they may either be specified, or the insurance may be against all perils.

We have had an instance of each kjmd of these special insurances; pf the latter, in the case of Goix v. Knox, “ where, besides the usual risks enümérated in printed policies, it was declared, by a clause in writing, that the assurance was to be against all risks.” And in the former, in the case of Gardiner & others v. Smith, “where the insurance was against the risks, among others, of contraband and illicit trade,” and the goods were seized at Jamaica, while landing, and condemned as contraband and illicit by the law of that place ; and cases may be supposed, where, although the property is insured as neutral, the insurer may, nevertheless, expressly take on himself the peril of condemnation, for breach of blockade, or for any other specified or enumerated cause ; and in every such pase, should there be a condemnation, the assured must be allowed to show, either by the condemnation itself, if it furnishes the requisite evidence, and, if not, then by such matter extraneous

the suit, by the as- sured against the insurer. The cases at bar, are, as it respects the perils

of condemnation, cases of general insurance, as here explained. Where the property is insured as neutral, the law intends not only that the neutrality, as an ingredient or quality in the property or ownership of the goods then exists, but likewise that it shall be preserved during the continuance of the insurance, and conse- quently, that there shall not be any act or omission, either by the assured himself, or by others, whose acts or omissions may in that respect be deemed to affect him, to forfeit it; and the neutrality constitutes as it were, a title, the existence and preservation of which, either in himself, or in the other persons, if any, on whose account the insurance may be made, or for whose benefit it may, in consequence of a sub- sequent transfer of the goods, be to enure,' the as- surance is deemed to warrant; and this warranty, from the assured to the insurer, is a condition of the .insurance,

or the indemnity from the insurer to the assured. Every condemnation is either rightful ox wrongful —If the captured goods, being duly defended in the court of the captors, by alleging and proving the title of the assured as above defined, should, not- withstanding, be condemned, the condemnation will

If the assured has any such right, he must have it either limitedly, to controvert the principles which relate to the law, and not those which relate to the fact; or those which relate to the fact, and not those which relate to the law ; and if to controvert those which relate to the fact, still he is to be confined to the proofs as they were before the judge, by whom the condemnation was pronounced ; or he must have the right unlimitedly, or, as it is expressed in the case of Hughes v. Cornelius, 2 Show. 232, to controvert the condemnation “ at large. ”

It will readily be perceived, that as the principal question, whether the assured is or is not to be concluded by the condemnation may be differently de • cided ; so will the situation of the insurer be varied from certainty of safety, to the mere expectation or possibility of it. If the condemnation is to be conclusive- against the assured, then, however, there may have happened a “ capture, a taking at seafi and so the case within the very terms of the policy j yet if, further, there lias been a condemnation of the goods, the insurer is safe in an absolute sense; but

In some cases it may be more favourable for the insurer, that the assured should controvert the law and not the fact. In others, again, that he should controvert the fact and not the law; and it must ever* be most favourable to the insurer, that the assured should be precluded from producing new proofs; and this difference of situation must be viewed as material, in the greater number of cases, which probably will happen ; not only so, but some may easily be conceived, where, as it respects the certainty, or possibility, that the assured can, or cannot, succeed in showing the condemnation to, be wrongful may wholly depend on a different decision, one way or the other, of these questions, taken singly ; before,. therefore, it can be declared that the right of the assured to controvert the condemnation, is limited, the rule whereby some of the limitations of it here suggested, are to be adopted, and others to be rejected ought to be shown.' It may, however, be safely asserted, no such rule exists ; the limitations themselves, the distinctions that where a judgment is alleged, the party against whom it is alleged, may controvert it as to the law, but not as to fact; or as to the fact, but not as to the law ; and if as to the fact, that he is still to be concluded as to the proof, not being known in the law ; and I cannot discern them, as

It is now to be stated, that where the property is insured as enemy’s property and a capture by an enemy, the other belligerent party, it is inevitable that the goods will be both actually and rightfully condemned; they are as much lost to the assured as if they were captured by a pirate, and can no otherwise ever happen to be recovered to him than by a recapture ; and he may, in such case, abandon instantly on the capture. But where the property is insured as neutral, there are means, which, as to be distinguished from the forcible or physical means of recapture, may be denominated moral means, whereby, until a condemnation shall have taken place, it is possible the goods may be recovered : there may be a claim and defence of them in the court of the captor ; and although it is stated as possible only that the goods may, by a defence of them, be recovered; yet, if it was requisite to the argument, it might be stated as the intendment of law that it is probable ; for if the title of the assured should be duly alleged and proved, and the goods should, notwithstanding, be condemned, the condemnation, as has been already stated, must then be to be attributed to the error, either of the judge or the witnesses, and the law will never presume error beforehand. If, however, there is a possibility only, that, by a defence of the goods, a

Where lands are granted with warranty, if the grantee is sued by a person, claiming by better title than the title of the grantor, he may, as it were, abandon to the grantor; he can compel him to appear in court, and defend the land; he may vouch him, and thereby substitute him as the defendant to abide the event of the suit “for loss or gain and he is the party to be presumed best cognisant of the title. Such is the rule in the case of a warranty, in the nature of a general contract of indemnity, from grantor to grantee ; but if the assured may abandon to the insurer on the capture, and impose the defence of the goods on him, the rule will be reversed; the warrant or may then substitute the warrantee?, as the defendant, and the defence of the title will then be imposed on the party to be presumed not only least cognisant but even wholly ignorant of it.

The warranty in a grant of land being an indemnity against the acts of others claiming by title, and consequently not against entries by persons not so claiming, nor against assumptions of the land by the public authority of the state, nor as to any matter which may have come to exist thereafter; it may be said to be an indemnity against title only, and not against casualty ; and, accordingly, if there should be a judgment against the title of the grantor, whether rightful or wrongful, he is alike held to indem

Farther — If the assured may abandon on the capture, he is entitled then, also, to sue for the loss, and the insurer must, accordingly, litigate the suit, in expectation it may be in his power to prove either that the property was not neutral, or that the neutrality had been forfeited, and so a breach of the warranty, and involving as a consequence, that the goods may be rightfully condemned ; or he must pay the loss voluntarily, and also instantly, any credit allowed in the policy, being wholly of .special or positive compact or regulation, and not arising from the insurance considered in itself. If he litigates the suit on the policy, he must relinquish a defence

These considerations are sufficient to show that the assured cannot abandon on the capture ; that it is necessary the goods should be defended in the court of the captor; that the defence of them remains on him; and that he cannot cast it on the insurer. It is, however, at the same time to be stated, that if, having made a defence in the court of the captor, the assured may still afterwards controvert the .condemnation at large in the suit on the policy, it is obvious such previous defence can be estimated as a mere formality only ; that nothing is gained by it to the, insurer, but that he is left in the like disadvantageous situation as if he, and not the assured, had to defend the goods in the court of the captor; for although in the suit on the policy, instead of defending he will have to defeat the title of the assured, still the one case, equally as the other, involves the truth or falsehood of the same facts ; so that the reasoning, from what has been stated, terminates in this conclusion, that the right of the assured to contro

The last sentence may be expressed in other xvords —“such is our interpretation of the contract between the assured and insurer, as to the right of the assured to controvert a foreign condemnation, the property being insured as neutral.” The argument, as contained in what is here cited, is, that an insurance being an indemnity against casualty, and an unjust foreign condemnation being a casualty, an insurance is therefore an indemnity against an unjust foreign condemnation; and the act of the prince being a casualty, th.e proof of the minor term in the syllo

Emerigon, in farther support of the assertion— that an unjust condemnation is. a casualty, for which the insurer is to answer,” refers to JRoccus, :Not. 54. “ Merces captas a potestate, seu judice justitiam administrante in illo loco, aut a populo, aut ab aiiqua quacunque persona per vim, absque pretii solutione, tenenter assecuratores solvere 'cestimatio

I will now briefly apply to the case of an insurance, the law, as declared in the case of Hughes v. Cornelius, already cited, it being the most ancient case in the books, as to the effect of a foreign condemnation ; and the adjudication which took place in it, having never been questioned, the case is now to be viewed as of the highest authority.

The judges, in that case, not only assume it, that a domestic condemnation is to be received as conclusive, but they suppose that, therefore, a foreign condemnation ought likewise to be so received; they argue the conclusiveness of the latter, from the conclusiveness of the former; they express themselves, u as we are to take notice of a sentence in the admiralty here, so ought we of those abroad in other nations, and we must not set them at large again.” It is true, the question was only as to the direct, and not as to the collateral effect of a condemnation; but the reasoning.with which the judges close their opinion, that a foreign condemnation is to be conclusive, as to the direct effect of it, namely, “ that if the captured is aggrieved, he must apply himself to the king and council, it being a matter of government, he will recommend it to his liege’s ambassadors, if he see cause, and if not remedied, he may grant.

The objections to receiving a foreign condemnation as conclusive against the assured, if I have rightly understood them, and, indeed, as some of them are expressed by a late English writer, on the law of insurance, Park, 363, also read on the argument, are, “ that the judges of a foreign nation may possibly decide on their own municipal laws or ordinances, contravening, or not forming a part of the law of nations ;” and further, that the judge of a belligerent nation cannot be viewed as standing indifferent between a neutral nation and his own, in deciding on the interfering rights of neutrals and belligerents, as depending on, or to be deduced from, the law of fiations.

That even the most enlightened and upright judges may oftentimes, and in a great degree be under the influence of national partiality, can scarcely be denied ; such is human nature, “ Parum cavet natural1 But can neutral nations say they are less susceptible of interest or passion, than belligerent nations ? Is not the armed neutrality in Europe, in 1780, to compel the British to acknowledge and observe it as a principle of the law of nations, that free ships make free goods, a proof of directly the reverse ? Can our nation claim us, or can we claim ourselves, to

I conclude, with remarking, that possibly, as I have already intimated, an insurer may, by especial or express insurance, take on himself the peril of an unjust condemnation ; and something of that kind has been attempted, by inserting a clause in the policy to the following effect: “Warranted American property, and proof thereof to. be made, if required, in New-York only but whether an insurance in this form, is sufficiently provisional or explicit ? — * Whether it would be deemed to be against a condemnation for any Cause, or against a condemnation for some causes only, and not others; and if so} which the causes are, as to be discriminated from each other ? And especially, whether the assured may abandon on the capture, or whether he is not bound to follow the goods into the court of the captor, and there defend them ? Or, in short, whether it is possible to devise a form, fully and distinctly providing for all the cases and events which may occur ? Or, whether it is not unavoidable, that the whole must be put on the simple footing of a war - premium, anda war-risk ; so that all understanding, representation, or warranty, that the property is neutral, and that the neutrality is to be preserved, and not forfeited, are to be altogether laid out of the

This was an insurance on the freight of the Astrea, from New-York to Corunna in Spain. The policy was subscribed by the defendants On the 19th November, 1798, in consequence of a written representation from the plaintiff, stating the ship, freight and cargo to be his property.

The plaintiff was originally a subject of the United Netherlands and continued so till the 3d January, 1793, when he was naturalized as a citizen of the United States. He must, of course, have emigrated to America at least two years antecedent to that period and before the United Netherlands were invol-. ved in thé late European war, and he is stated to have been personally known to the defendants.

The vessel during the voyage was captured by a British frigate as prize, carried to Gibraltar, and with her cargo, there condemned by the court of vice-admiralty, on the ground of her “ belonging at the time of her capture to Spain, or to persons being subjects of the king of Spain, or inhabiting the territories of the king of Spain, enemies of Great- Britain.” From the situation of the plaintiffs, and the representation to the defendants, the insurance must be considered as made upon American or neutral property. The representation is to this purpose equivalent to a warranty of that fact, and liable to the

In every instance of a foreign condemnation a loss must necessarily happen. If the property be really American, and insured here, the burthen must fall on some of our citizens. It is then a question between them solely, audit can never be politic or just to seek to shift the loss from one description of citizens to another. If the property be not American, and insured in this country, an interested policy, if such could be justified, xvould dictate an opposite rule of decision, and lead to protect the American insurer against the foreign owner, and thus determine the question against the insured.

Again, if the property be American, and insured abroad, the remedy is placed beyond the reach of our laxvs, and it would be a vain presumption in the courts of this or any other country to attempt to prescribe a rule for foreign tribunals. But I dismiss this topic as unconnected with the merits of the question. Opinions founded on policy are necessarily various and fluctuating, and ought never to actuate a court of justice. The question in every instance must depend on its intrinsic merits arising from the nature of the contract and the general law of insurance, unless restrained by positive regulations.

In this view of the subject, the judicial determinations of courts in different countries, as well as the opinions of individuals, may differ, but that difference, I apprehend, can never, as has been imagined, become a matter of national concern. The regular administration of justice, when conducted with good

1st. As between the insurer and insured, in case of a representation or warranty of neutral property, I think a condemnation in a foreign court of admiralty, when founded on the want of neutrality, operates definitively against the insured according to the terms and éffect of the contract itself. During the existence of a maritime war, the state of commerce is necessarily more or less precarious. Neutrals are not exempt from this inconvenience, but neutrality, if respected, affords a great advantage. The neutral merchant, when he effects an insurance, may either retain the benefit of his neutrality, or, if diffident of its security, he may relinquish it, and specially insure his property against every possible loss. If he

It is obvious that, every such representation or warranty is made, not with a view to an examination of the fact in our own courts, but in reference to the parties at war, and to the danger of capture and condemnation abroad. This is the direct object of the stipulation. It cannot be limited to the naked position that the property is in fact neutral. It may be so and yet possess none of the indicia or evidences of neutrality. These evidences, it is not denied, the insured undertakes shall accompany it, and I think he equally undertakes that it shall enjoy the privileges of neutrality.

. There appears to me no room for the distinction that the insured engages to furnish the evidences merely, and at the same time not to maintain his neu - trality when it may be called in question. If the proper evidences accompany the subject, it is not legally to be presumed that its neutrality cannot be maintained. Whatever abuses may occasionally be committed we cannot act judicially, nor suppose the parties to have acted on the presumption of injustice in foreign courts. The idea is inadmissible when applied to the courts of a civilized nation, and if contemplated by the parties ought at least to have bees

If this reasoning be correct, it follows, that the insured, having represented or warranted the subject to be neutral, can never, on the terms of the contract itself, recover against the insurer when it appears to have been condemned on a ground which denies its neutrality. It is immaterial, in this view of the subject, whether the condemnation be just or unjust; it is sufficient if it proceed on the want of neutrality.

2. The question in the English courts does not appear to have been examined in this light. They have been content to apply to the decisions of foreign courts of admiralty, a principle whichhas long been received and adopted in their domestic courts. They place them on the same footing, and consider the conclusiveness of their sentences as necessarily resulting from the right of jurisdiction. In relation to their own courts the rule has undoubtedly been

But another principle of English and American jurisprudence, arising from the nature of the subject and the system of our courts, appears to me strongly to enforce this doctrine. — The question of neutrality is involved in the general question of prize — it is a necessary incident, and the want of neutrality forms the principal ground of capture and condemnation. It is a settled maxim, that the courts of common law have no jurisdiction on the question of prize; it may collaterally arise, but ex directo it is not within their cognizance — it belongs solely and exclusively to the courts of admiralty as courts of prize. — This is established by a current of authorities both ancient and modern, and the reasons on which they are

In every light, therefore, in which I have been able to view the subject, I am of opinion, that the foreign sentence ought to be deemed conclusive against the plaintiff’s right to recover on the policy.

1. From the nature and import of the contract itself, by which I consider the insured to have guaranteed his neutrality and undertaken to maintain it, and, of course, liable to all the perils attending it.

2. Because the condemnation is to be considered as conclusive evidence of the want of neutrality, it being the sentence of a court, not only, of a competent but exclusive jurisdiction on the subject.

This cause is on a policy upon the cargo and freight of the ship Astrea.

The facts are these.

The voyage was from New-York to Corunna, in Spain, and the ship was described as the good American ship the Astrea ; and previous to the time of signing the policy, the plaintiff, in a written application for that purpose, to the respective defendants, represented the property to be his own. The ship was captured-on her voyage by a British frigate, carried into Gibraltar, and by the court of vice-admiralty there, the ship and cargo were condemned as lawful prize, as belonging, at

The result of my opinion, accordingly, is, that the plaintiff is not entitled to recover in this cause, beyond the return of his premium.

On the judgment rendered in conformity to the foregoing opinions, the now plaintiff Vandenfieuvel brought his writ of .error, insisting that the judgment Was erroneous-r-

1. Because there was no warranty in the policy, and, therefore, the defendant assumed every possible risk.

2. Because the order for insurance, if it amounted to a representation, must have been understood by both parties merely as a representation that the property belonged to the plaintiff, not that it was neutral or American.

3. Because the sentence of condemnation does not negative the representation : And,

As. Because, if the representation amounted to an explicit warranty of the neutrality of the property, the jury have found it to be true, and the sentenee ought -not to be received as evidence to the contrary.

1. We say, there being no warranty in the policy, the underwriter took upon himself every hazard, and particularly those arising from the character and quality of the property.

The policy on record contains nothing like a warranty of any kind. Mr. Vandenheuvei is not stiled a

1. From the express terms of the order.

% From the course of the transaction.

The representation is that the premises insured, were the property of John C. Vmdenheuvel. This, say the underwriters, and the Supreme Court, is equivalent to calling the property American. Whence , is this inference drawn 9 Not from the name; this is most unequivocally Dutch ; not from the place of his nativity ; this it is admitted, was in the United Netherlands ; nor from his looks, every underwriter at first sight would pronounce him a foreigner; nor from his speech, for although he speaks English very well, the accent of his mother country is perceptible in every sentence; nor could it be presumed from his residence in New- York ; this the Supreme Court have said in the case of Campagne v. Deyne, is not worth a rush,,. Still less was it to be collected from his naturalization ; this Judge Kellsall has pronounced, in the case of poor Duguet, (and his sentence has also been affirmed) a sin against his natural allegiance, and a violation of the rights of the belligerent parties. The truth is, Mr. Vandenheuvel did not choose to say whether he was a subject of the emperor of Morocco, a citizen of the Batavian republic, or a sachem of the Tuscarora tribe of Indians. This they were to guess at as well as they could. He knew that foreign admiralties were in the habit of metamorphosing the national character of a merchant ad libitum ; but he had never heard of their undertaking to change the name of an owner. He was not afraid, therefore, of their

During a war, underwriters ever -distinguish between enemy and neutral property : For the former they have a higher premium, and the policy is against all risks. In the latter case, as the premium is much lower, they take care to have the neutrality of the property stated in the policy: When this is omitted, the presumption is fair, that they regard the property as enemy, and receive a premium accordingly. Not an instance has occurred this war, wherein an underwriter meant to insure neutral propérty, as such, without its being expressly so declared in the policy. If, in this instance, the contract had been intended to be of that kind, most certainly they would have taken care the policy should speak for itself. They would not have trusted to a slip of paper, which, by the negligence of a broker, or other casualty, might be lost or destroyed.

Again, great injustice will be done to Mr. Vandenheuvel by the construction attempted to be put on this contract. It is become a general practice with merchants, who warrant their property neutral, to provide, by a proper clause, that a foreign sentence, shall not preclude other proof. This would have been done here, if either party had supposed the goods American. From this benefit, the plaintiff will be precluded, and that by the negligence of the defendant, who should have insisted on this stipulation, if he intended, at a future day, to avail himself of it. His not making this a part of the contract is a clear proof that he did not underwrite the property as neutral, and received a premium accordingly.

If our interpretation of the order, which leaves no room for construction, be just, it'follows—

“ The property is condemned as belonging to Spain, or to persons being subjects of the king of. Spain, or inhabiting within the territories of the king of Spain, enemies to the king of Great-Britain.”

Mr. Vandenheuvei has not said he was not a subject of the king of Spain ; a person may, by swearing allegiance to different sovereigns, become the subject of several countries. We have many British subjects among us who are American citizens, but who would be treated as traitors by the mother country, if taken in arms against it. So that, for aught that appears, the plaintiff' may have sworn allegiance to the king of Spain, and yet the property may fall within the letter of his representation, which only declares it to be his own. It is admitted he was bom in Holland, and the British courts of admiralty, if. they govern themselves by the decisions of our supreme court, would have confiscated it, although he had produced his letter of naturalization. It was, no doubt, to guard against this very event, that he cautiously avoided declaring to what country he belong-' ed. He knew he was an American citizen, but he could not tell that foreign courts would consider him. as such.

The cargo was too valuable, not to have - brought his case within some of the new-fangled principles, which have lately been adopted to reach neutral property. He knew, also, that by the law of nations 5 and by that of England, he was entitled, for every purpose of trade, to be regarded as an American but he as well knew, that boards of admiralty re

1st. It is presumed that he is an American citizen. This is in direct contradiction to the decision rV* in the case of Duguet. Then it is presumed he meant to warrant the property American, although nothing of the kind appears in the policy. Next, it is presumed he meant to represent it as such, although the order for insurance conveys a meaning totally different. Then it is presumed, the property was not American; because, the judge, appointed specially for the purpose of condemning neutral property, has said it belonged to Spanish subjects.—■ Lastly, it is presumed not to belong to Mr. Vandenheuvel, although his name does not appear in the decree. There must be some uncommon sanctity in these decrees, where so much pains, and such forced constructions, are resorted to for their support.

But if all these presumptions must be made in a ease where every honest feeling must take part with the assured, we say—

5. That the jury having, by their verdict, verified the truth of his representation, the sentence cannot be received as evidence to the contrary.

That a sentence abroad, ought, in no instance, to conclude the assured, was shown in the case of Goix

If such sentences are conclusive against one representation, why not against another ? In that case, where are xve to stop ? Representations are infinitely more diversified than warranties. One man in his instructions to insure, calls his vessel a ship—she is condemned, because she is a brig. Another says, the crew are all J\rew- Yorkers—she is sentenced, because one of. them was born in Boston. A third says his vessel is^ an unarmed merchantmen—she, too, falls a prey; and-without a particle of proof, it is stated by his honour, that she was armed with thirty-six guns, all twenty-four pounders. This, too, must be conclusive ; for, although the vessel insured, should appear to be an Albany sloop of only fifty tons, our courts would be compelled to believe, that by some miracle, she had strength enough to carry guns of that caliber, and would think it very disrespectful in the owner, to hint at the impossibility of the thing.

A merchant will soon find it difficult to write an order for insurance—lie will hardly dare to open his lips. If he tells the truth, and has a hundred witnesses to attest to it, it may, by and bye, be contradicted by a judge, of whose existence he had never heard, or who may be one of the herd that infest

Thus will every American be driven to the necessity of carrying on trade as a belligerent subject, to avoid becoming a victim of the fascinating doctrine, that admiralty judges can do no wrong; and that their righteous decrees are to bind all mankind, from the rising of the sun to where he goeth down. The decisions of Sancho, while governor of Baratraria, notwithstanding the sagacity which the squire discovered, and the high reputation in which they have hitherto been held, must now, like every thing human, pass away. His judgments were the result of common sense and common honesty, (for luckily for his subjects, he knew nothing of the law of nations) but they bound only the inhabitants of a small island: the West-India sentences, on the contrary, pervade the globe, and proceed on the eternal and immutable laws of God and of nature, which no earthly conside

There being neither a warranty, nor representation as to the property’s neutrality in this case, it must be superfluous minutely to examine how a foreign sentence should be treated in this country. I shall therefore only subjoin a summary of the reasons why, even in case of express warranty, a sentence should be conclusive of nothing, except that the property was actually condemned, and that therefore, the assured was entitled to recover.

1. It is contrary to the written contract, and the true understanding of the parties. The high premium paid by neutrals during a war, is to be protected against unjust judgments. It is not within human ingenuity to assign another plausible reason, why neutral property should, in a war between other powers, be burthened with so great an addition of premium. Is it not then absurd and unjust to say, that by such a sentence, the risk, which was so much apprehended,

2. It is a capture at sea which gives to the assured a right to abandon. This being made, fixes the condition of the parties. A subsequent judgment cannot alter or vary their rights. “ If an abandonment be made, the assurers” says Emerigon, “ are alone interested in the sentence which may be pronounced ; and if the ship be declared good prize, contrary to the law of nations, or the laws of war, the underwriters must suffer by it. If the property be released, it belongs to them in virtue of the abandonment. But what fixes,” says he, “the condition of the parties, considered in itself, is not the judgment rendered by the tribunal of a foreign and hostile monarch. It is the abandonment, made or not made ; it is the capture, that confers the right of abandoning.” See Valin, voL 2. p. 122.

Here, in few words, without any affectation or display of learning, we have a just and correct construction of an important expression in the policy, a want of attention to which has occasioned all the confusion and absurdity of modern adjudications. It had not occurred to this profound lawyer, how an unjust sentence, which must necessarily be subsequent to a capture, could defeat the rights of the assured, which that event, followed by a timely abandonment, had rendered perfect and indefeasible : Nor could his penetrating mind discover, how any question, arising

3. If these sentences are received as conclusive, great injustice will most certainly, and invariably follow ; which will be avoided, by permitting the assured to prove his warranty. This argument should exclude the reception of these sentences : by doing so, injustice may be done ; in the other way, an improper decision is impossible.

4. These courts being governed, not by the law of nations or of war, but by arbitrary mandates of their respective sovereigns, it is folly in the extreme, to pay any deference to their decrees.

5. If they were truly governed by general, fixed and known rules, their modes of proceeding, are too unfriendly to truth, to receive their sentences, as evidence of any fact whatever.

6. It is extremely difficult, and so allowed to be on all hands, even when the cause of condemnation appears, which is not often, to discover by what rule the judge has come to his conclusion; it is, therefore, not just to say, it must have been for this or the other reason.

7. It is impolitic to give any credence whatever, to these decrees, except when it is attempted to disturb their direct effects.

8. By admitting the assured to prove his warranty, these sentences are neither opened or reviewed ; a contrary supposition has been the source of much error on this subject.

Upon the whole, a case more to be favoured, never presented itself to a court; the plaintiff has

Brockholst Livingston, of counselfor the plaintiff in error.

The defendants in error insisted that the judgment ought to be affirmed, because,

1. The description of the good American ship is equivalent to a warranty of her as American property, by the plaintiff in error.

2. Because every warranty in a policy is deemed to be a condition that a certain thing shall be performed, and unless it be performed the contract is void. It is perfectly immaterial with what view the warranty is inserted; or whether it is inserted with any view at all; but being once inserted it becomes a binding condition on the assured ; and unless he can show that he has literally fulfilled it, the contract is the same as if it had never existed.

3. Because the sentence of the court of vice-admiralty, condemning the ship and her cargo as Spanish property, without assigning any reasons for the condemnation, is conclusive evidence that the ship was not American property. Hence it follows that the plaintiff in error has failed in performing his warranty that the ship was American property, and consequently the plaintiff in error cannot be entitled to

Robert Troup, of counsel for the defendants.

On the cause being brought on, Radcliff and Kent, justices, assigned the reasons of the court, as ante, from page 243 to 267 inclusive.

Clinton, Senator.. The plaintiff having warranted a ship and cargo as American property, the question is, whether, in an action against the insurers, the sentence of a foreign court of admiralty, that such warranty was false, is conclusive evidence. It is admitted by the plaintiff, that the sentence binds and changes the property, and that it is prima facie evidence of the fact set up against him ; and on the other hand, it is conceded by the defendants, that in several cases, in an action of this kind, the judgment is not definitive in favour of the insurers; such as when, on the face of it, it is founded on local ordinances, or contrary to the law of nations, or so ambiguous that the court cannot, from the reasons assigned, collect the grounds of it; and, that this case not coming within either of these descriptions, the contest between the parties still remains open, whether the foreign sentence b e prima facie or conclusive evidence, against the insured, and whether it bind the property adjudicated only, or is conclusive to every extent, and in every modification of the subject.

Upon a question of such immense importance, either as it respects the interests of commerce, the honour of the nation, the rights of individuals, or the principles of justice, great and mature deliberation is requisite and essential. I know not any cause

heads. 1st. Authorities, previous to the 19th April,

1775. 2d. Analogical reasoning from domestic

courts. 3d. The nature and meaning of the contract of insurance;

and, 4th. National considerations of courtesy, comity, and the

like. The cases quoted, as existing anterior to the re- volution, are not only few, but are either ambiguous or not in

point. The most ancient one, reported in 2 Shower, of Hughes v. Cornelius, was an action of trover, brought for a ship sqld under a decree of a French admiralty court. The court admitted the sentence to be true, although contrary to the special verdict. They went upon the ground of the decree’s changing the property, and of the inconveniences that would re- sult to merchants, if the court should unravel the title of property acquired in this way; and the reason assigned by chief justice MiKean, in a case reported in Dallas, seems to be conclusive ; the idea that a sentence of a court of admiralty is con- clusive, 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, or any person purchasing under the decree, will, of course, be

secure. - The next case relied upon, is a supposed one

The case of Fernandez and Da Costa, was a Nisi Prius one, and it expressly states, that the plaintiff only gave a partial evidence of the vessel’s being Portuguese ; and all we can collect from it, is, that the testimony adduced by him was not sufficient to balance that derived from the foreign adjudication. -Will it be believed, that upon this slender ground, the mighty fabric of conclusiveness is attempted to be erected? For, independent of decisions since the revolution, which are no authority; of arguments from analogy, which I shall presently notice; and of a few scattered dicta in the books, which do not bear the stamp of judicial authority; there is nothing whereby to warrant the decision of the court below.

The arguments derived from the deference which is paid by the courts of England to each others proceedings, do not apply. They are parts of the same building, held together by one common arch. They are under the same government, proceed according to the same law, and redress can be obtained through higher tribunals. If they attempt to exceed their jurisdiction they can be restrained by a superior power, which has an interest in preventing any undue encroachments, and repressing any improper deviations. This is not the case with a foreign court of admiralty. If a neutral conceives himself injured, and is indulged with an appeal, he must still con

With respect to the nature of the contract, upon which much has been said, I confess I do not perceive the force of the reasoning, which attempts to fix the loss on the insured.

The contract of insurance, says Park, being for' the benefit of the insured, and the advancement of trade, must be construed liberally, for the attainment of those ends. We must, therefore, not give it an exposition that would tend to embarrass commerce, or injure the assured ; but adopt such a construction as will most promote the important objects in view. How commerce would be affected, shall hereafter be considered. By the terms of the contract, the assured warrants the property to be neutral, and it is understood to be incumbent on him, so to conduct the vessel, as not to forfeit her neutrality. If the vessel be neutral, in fact, he fulfils his warranty.— He does not warrant that she shall be so in the conception of foreign courts. It is not in the reach of human sagacity, to scan the views which different men may take of the same subject, or the various motives which may produce clashing decisions.—

With regard to the comity due from one national tribunal to another, it appears to me that the compliment is carried sufficiently far, by considering the sentence as prima facie evidence. We are not bound to sacrifice the substantial interests of our citizens to etiquette or courtesy. If a foreign nation will countenance unjust spoliations, if. a foreign judge will divide the spoil with the plunderer, are we to countenance the knave and the robber, and declare, with all possible politeness, although we are convinced that an inquiry would paint you in these colours, yet, our respect for your authority will prevail over a regard for justice, or the claims of our citizens; we shall silence all discussion ; and, although we know you to be both ignorant and corrupt, both oppressive and fraudulent, yet, as you wear the form, without attending to the obligations of a court of justice, we shall treat your decisions with all imaginable courtesy, comity, deference, politeness, and respect.

This is a summary of the doctrine, stripped of the imposing garb which it has assumed, and it can only be a question, whether it is most deserving of . ridicule, or detestation»

There is nothing, either in the constitution of the admiralty courts of European nations, or the mode of proceeding in them, which entitle them to respect. They adopt the rules of the civil law. The Judges hold their offices during pleasure, and follow the instructions of the ministry. The captors, who are interested, are admitted as witnesses, and the Judges are paid in proportion to the condemnations. They are generally composed of needy adventurers ; their great aim is plunder, and their primary incentive, avarice.

I have thus, in a cursory manner, glanced at the principal grounds of reasoning in the cause, and I must own, that I feel most deeply impressed with its importance. The effects of the decisions of this day, will be felt when we are no more ; and I trust, that it will receive the approving voice of our consciences, and of our country.

Gold, Senator. — The questions that arise in this cause for the consideration of the court, are:

1st. Does the warranty in the terms of the good American ship, the Astrea, import, in judgment of law, American or neutral property ?

On the first preliminary question, however loose and indefinite men arc in conversation upon subjects of this nature, yet when the occasion is considered, the bearing of the property of the ship on the professed object of the contract; its materiality to the risk, and consequent propriety of an understanding on the point; the court must, I apprehend, consider Mr. Vandenheuvel as explaining himself on the .question of property, and under the terms American ship, warranting it neutral.

Such, in my apprehension, is the plain, fair and rational import of the language used by the assured on this occasion.

On the second question in the cause, involving the legal effect of the sentences of foreign admiralties, I enter with much diffidence, and all the solicitude which its extensive operation upon the fortunes of our fellow-citizens, and the jurisprudence of our country, inspires. If our law is settled on this point; if the question is bound by authority, then law must have its course, however unpleasant the consequences, however .opposed to the speculation of the most enlightened statesmen.

For authority on the question, adjudged cases in that country from whence our jurisprudence is derived antecedently to our revolution, must be resorted to.

The necessary effect of the sentences of foreign admiralties in rem, in changing the property in the subject matter in case of condemnation, is readily

But the reason for extending those sentences beyond the attainments of the above objects, to controul the stipulations of parties in a policy of insurance are not equally cogent; the necessity not equally apparent.

For authority to support this application of admiralty sentences is cited, Buller's N. P. 244, Theory of Evidence, 37, and the case of Fernandez v. Da Costa, Park, 177. In the two first books the rule to the above extent is laid down in nearly the same words, in plain and unequivocal terms ; but- no case is cited in the Theory of Evidence, in support of the doctrine, and in Buller, the case relied on is that of Hughes v. Cornelius; which, although containing observations of the court of a very general and unqualified nature, yet, in the point adjudged, does not warrant the rule as there laid down.

■ The case of Fernandez v. Da Costa is apposite to the question before the court, and merits all that respect which is due to a N. P. decision of one of the greatest judges that ever sat in Westminster hall. The name of judge Buller must be considered also as adding some authority to the rule by him laid down, though supported by no adjudged case there cited.

No adjudications at bar, no elaborate discussions appear to have taken place on the question. On this foundation, in point of authority, stands the doctrine

After much reflection on the point, in every view I have been able to place it, I am not satisfied that the law on the subject was settled at the period of our revolution. In pursuing the history of law principles, in retracing adjudications, and collecting cases upon questions long agitated in courts, we find early cases often overruled; first opinions disregarded and reversed, and important questions finally settled in opposition to greater authority of precedent, than what is to be found on the question before the court.

Such is the result presented by a perusal of English reporters.

But general principles are resorted to in support of the definitive effect of admiralty sentences, and domestic judgments are adduced for illustration.

In the principles of sovereignty, in the superior integrity and responsibility of domestic judges, their exemption from the influence of policy, from the dominion of passions hostile to the administration of justice, too often excited in belligerent nations, in the prevalence of the salutary maxim of municipal origin, “ nt sit finis litium” will be found reasons, I apprehend, for superior confidence in domestic tribunals.

The case of Walker v. Witter, Doug. 5, is strong to show the difference between domestic and foreign judgments ; the incontroulable verity predicated of the former, is withheld from the latter, which are there holden to be examinable. Nor' is the effect

The case of Gage v. Bulkley, in Ridgway, and Burrows v. Jemimo, in Strange, are not considered as bearing on the question ; they resting on a different principle, that of the “ Lex loci contractus.” The qualified manner in which admiralty sentences are now received in England; their different operation as to the fact and the law, serve to mark a wide distinction between those sentences and domestic judgments. ,

If the reasons assigned for an admiralty decision, do not, when tested by the law of nations, bear out the conclusion, the sentence is rejected ; if the reasons are assigned in an obscure and unintelligible manner as to the point decided, the result is the same ; but if the judge should have no reasons, or, by casualty, omit to put them on the record, then the sentence becomes conclusive, and repels all examination.

Why a sentence founded on error, as to facts, should be more conclusive than one founded on error in law, is difficult to conceive. That the mode of admiralty trial, is more favourable to the investigation of truth, than that provided by our common law, is not, I apprehend, evinced by experience, nor do the opinions of some very eminent writers, warrant any such conclusion.

There is another ground, remaining to be considered, on which it is with some difficulty I have been able to form an opinion.

The position of the insurer'is, that the assured, on entering into the policy, well knows the tribunal of the captors to be the prize-forum ; that a consideration of neutrality is essential to the determination ; and, therefore, by the terms of his contract, assents to this test of his warranty. If the law, giving a conclusive effect to admiralty sentences, is to be deemed settled, then would the above conclusion correctly follow ; then would the assured be presumed to know that law, and to assent by his contract to all its consequences : but, upon any other ground, he may with equal reason be presumed to assent to a limited operation of these sentences as prima facie, or presumptive evidence, reserving to himself a right, and taking upon himself the burthen of disproving the same, and verifying his warranty. Such must be the conclusion of the assured in France.

A mind conscious of the truth of . the representation in the policy, would with difficulty be carried to the conclusion, that although the property insured be, in fact, neutral, yet if condemned it must from thence be deemed enemy’s. Where the property, in fact, is neutral, and in such case only, will the above opi

Such are the grounds on which my opinion on this important question, is formed. I will only add, that it is with no small diffidence, I submit an opinion for the reversal of the judgment of a court, possessing, in so eminent degree, the high respect and confidence of the community.

Judgment of reversal.