Majority
p. 531John Sleght and Cornelius Sleght, Plainiffs in error. against Hartshorne, Rhinelander, and others Defendants in error.
Headnote
See l jofyte a poficy ofln" surance con-lmvingclausei “ ^'iie vessel^ sea Utter, ■ without a ré-gister: prop-' erty warrant-that Parül ev-idence was-admissible t'o' explain what document waff. meant by1 at sea"Ietter'In error from the stfpreme court." This was an action on a policy of insurance,’ on the cargo of the brig Three Friends, on a voyage from Neio-York to New-Orleans'; At the foot of the' policy was the following clause" N. B. The vessel sails under a sea-letter without a re‘‘gister. Property warranted American; proof to' be “ made here only.” - -■
A new trial having been granted in this causé, (see vol. 1. p. 192.) it was again tried before Mr. Justice Thompson, at the sittings in New-Yorh, in June, 1808, when á z .77 - . , „ , . . , - HU of exceptions was taken to the,opinion or the court, on' several points which arose at the trial.
, The bill of exceptions stated the proofs given, and offered to be given, by the plaintiffs at the trial. The policy, interest of the plaintiffs in the property insured, the sailing of the vessel on the voyage, a total loss by foundering at sea, the usual preliminary proofs, an abandonment in due season, and that the plaintiffs were American citizens,Were either admitted or proved as stated iñ the bill-. It
p. 532
was further proved, that the vessel had on board bills of lading and an invoice of the cargo,- and a regular clearance from the custom house in New-York, and also a document, signed and sealed by the collector and naval officer of the district of the port of New-York, in the words anc] figures following, to wit:
L. S.
Joshua Sands, Collector.
x. s.
R. Rogers, - Naval Officer.
No. 36, Thirty-six.
'United States of America.
District of the port of New-York, in the State of New-York.
WE, Joshua Sands, collector, and Richard Rogers, naval officer, of said district, do hereby certify, that Cornelius Sleght, ofthe city, county, and state of New- York, merchant, has taken and subscribed an oath, that he is a citizen of the United States, and that he, together with John Sleght, of the said city, merchant, are the only owners of the ship or vessel called the Three Friends, of Nevj-York, whereof Jesse Bowers is at present master, and is a citizen ofthe United States; that there is ho subject, or citizen, of any foreign prince,- or state, directly, or indirectly, by way of trust, confidence, or otherwise, interested therein, or in the profits, or issues thereof: And John Lasher, surveyor of this port, hath certified that the said ship or vessel has two decks and two masts, that her length is seventy-four feet, six inches, her breadth twenty-two feet one inch, her depth eleven feet and an half inch, and that she measles one hundred fifty-seven 20-95 tons; that she .is á square sterned, and round tucked brig, has no galleries and no head.
Given under under our hands and seals, at the port of New-York, this twenty-ninth day of September, in the year one thousand seven hundred and ninety-eight.
Districf of the city oí New-York.
Port of JVew-Yortc. WE certify, That the foregoing is a true copy of the certificate of ownership of the brigantine Three Friends, of New-York, issued at this port, taken from the original lately surrendered in this office.
Given under our hands and seals of office, at the custom house of this port, this twelfth day of July, in the year one thousand seven hundred and ninety-nine,
JOSHUA SANDS, collector. E- S.
R. ROGERS, naval officer. L. S.
The plaintiffs further proved, that the said brig, at the time of her sailing on the said voyage, and during the same, was not entitled to be registered as a registered vessel of the United States; and that the said document is always granted at the custom houses of the United States, to ships or vessels of the citizens of the United States, not entitled to be registered, upon the oath of the owner or owners, or some of them proving that such vessels are, bona fide, American property; and that the same is a proper and customary document for such ships or vessels, and as such has been approved by the executive government of the United States.
The plaintiffs further offered to prove, that the said words, “ N. B. The vessel sails under a sea-letter, without a register,” according to their true intent and meaning, and the general acceptation and understanding of the said terms among merchants, and between insurers,
p. 533
and insureds within this state, at the time pf making the-, said policy, and according to the commercial import of the same, imported, that the said vessel sailed with such document as is above set forth, signed and sealed by the collector and naval officer ; to which proof the, dc-r fendants objected, and insisted, that the'plaintiffs ought to show, that the said vessel had on board a passport or seprletter, according to a form prescribed by the treaties between the United States and France, of the 8th February, 1778, and between th,e United States and the United Netherlands, of the 8th October, 1782, and between fho United States and his most Catholic Majesty, of the 20th October, 1705; whereby the vessels of either partyf yrhen the other is at \yar, are required to produce certain letters, or passports, according to a form prescribed by and annexed to those treaties. The defendants’ counsel, piso, in support of their objection, produced and proved pn official letter from the secretary of the treasury of the 'United -lates to the collector of the port pf New-YorJc, received when it bears date, as follows :
Treasury I)epartment, May 13th, 1793.
Sir,
f ‘ It being necessary in the, present state of war among the principal European powers, that all ships and Vessels, belonging to citizens of the United States, should be furnished, as soon as possible, with sea-letters, for their more perfect identification and security; you will find, yfifhin the enclosure, ten copies of two several documents pf that kind signed by the President of the United States, pad countersigned by the secretary of the department of state, which have been received from that department, fop fhe purpose of being transmitted to the several custom houses. One of each of these, letters,is to be delivered fo every ship or vessel being actually and bona fide the property pf one or-more citizens of the United States, afí§r the captain shall have duly made oath to thp effect.
p. 534
and according to the tenor of the certificate, printed under that which is in Dutch and English, the substance and purport of which oath is conaprised in the 10th, 11th, 12th, 13th, 14th, and 15th lines of the said printed certificate. To this' the captain is to be duly sworn, beforp some offiper qualified to administer oaths, such as a justice of the peace, an alderman, or any other inferior judicial officer^ preferring the mayor, chief burgess, or other officer (if any there be) who is the chief magistrate of the city, town, [*]or borough, in which the issuing custom house is situated. The certificate is then to be signed by the magistrate ; and tfie public seal (or if he has no public one, his private seal) is to be affixed. The blanks are to be filled up both in the English'Dutch copies of the sea-letter, by the collector, and in both the English and Dutch copies of the certificate, by the magistrate or judge. The English language may be used in filling the blanks in both the English and Dutch papers. The blanks in the two papers vary, owing to a little difference in the yvords which bound them. This is produced by the want ¡of a perfect similarity between the idiom of our language .and that of the Dutch.
You will acknowledge the receipt of all the sea-letters you shall receive from time to time, and you will keep a record thereof, and of your disposition of them, showing the names of the vessels (with their masters and owñers) for which they were issued, the ports of the United States to .which the vessels shall belong, the date at which you issue them, the officer before whom the captain shall be sworn, the burdens or tonnage of the vessels, and the la-? dings on board of them. .
Of these you will be pleased to make an abstract by way of return, up to the last day of every revenue quarter, and to transmit the same to this office, with a note of the sea-letters received and issued during such quarter, ¿and of the quantity remaining on band.
p. 535
Thesé documents being of great importance to the- United States, not.only as they regard the benefits to be derived from the state of peace by the owners, navigators, and builders of ships, but also as they affect the importation of our supplies, and the . exportation of our produce, at peace charges, you will execute the business in relation •to .them with proportionate circumspection and care.
I am, Sir, with consideration,
Your obedient servant,
A. HAMILTON.
John Lamb, Esq. > Collector of customs for N. Y. )
The counsel for the defendants also.showed the form' of the sea-letter referred to in the said letter, and which was proved to be according to the form annexed to the said treaties, under the seal of the United States of America, subscribed by' the president, and countersigned by the secretary of state, in four different languages on the same paper, viz. the English, (which is a correct translation of the other three,) the French, Spanish, and Dutch. languages; and they produced two of the said letters, which had been granted to the vessels therein named ; one for the ship Henrietta, from the port of Philadelphia, dated the 21st day of July, 1797, on a voyage from thence to Curracoa in ballast: and the other for the sloop Pilgrim, from the port of New-YorJc, dated the 5th day of September, 1804,'on a voyage from thence to New-Providence, with a cargo, of which the English part is as follows ; those parts of which that were written, being in Holies, the printed parts in roman characters.
“THOMAS JEFFERSON,
President of the United States of America.
To dll who shall see these Presents, greeting :
BE it known, that leave and permission are hereby given to Asioppe Robinson, master and commander of the sloop called the Pilgrim, of the burthen of 39,86-9,5
p. 536
tons, or thereabouts, lying at present in the port ofNewYork, bound for New-Providence, and laden with pork, potatoes,geese, onions, hogs, sheep, hoards, corn, fowls ducks, to depart and proceed with his said sloop on his said voyage, such sloop having been visited, and the said Robinson having made oath before the proper officer, that the said sloop belongs to one or more of the citizens of the United States of America, and to him or them only.
In witness whereof, I have subscribed my name to these presents, and affixed the seal of the United States of America thereto, and caused the same to be countersigned by David Gelston, collector of the customs at New-York, the 5th day of September, in the year of our Lord Christ, 1814.
TH. JEFFERSON.
(Seal.)
By the President,
JAMES MADISON, secretary of state.
.Countersigned,
DAVID GELSTON.
“ Most serene, serene, most puissant, puissant, high, illustrious, noble, honourable, venerable, wise and prudent, lords, emperors, kings, republics, princes, dukes, earls, barons, lords, burgomaster’s, schepens, counsellors, as also judges, officers, justiciaries and regents of all the good cities and places, whether ecclesiastical or secular, who shall see these patents, or hear them l’ead. We, Maltby Gelston, of New-York, notary public, make known, that the master of the sloop Pilgrim, appearing before us, has declared upon oath, that the vessel called the Pilgrim of Mount Pleasant, of the burthen of about 39, 86-95 tons, which he at present navigates, is of the United States of America, and that no subjects of the present belligerant powers have any part or portion therein, directly nor indirectly, so may God help him. And, as we wish to see the said master prosper in his lawful affairs, our prayer
p. 537
is, to all the before mentioned, and to each of then? separately,.where the said master shall arrive,-with his vessel and cargo, that they may please to receive the said master with goodness,- and to treat him in a becoming manner, permitting him, upon'paying the usual toll and expenses, in passing and repassing, to pass, navigate, and frequent, the ports, passes and territories, to the end to transact his business where, and in what manner, lie shall judge proper : Whereof we shall be willingly indebted. In- witness, and for cause whereof, we affix hereto the seal of our office, in the city of Neio-York, the 5th day of September, 1804.
(Seal.) ' M. GELSTOÑ, N. P'N
The sea-letter being thus established, and its form prescribed by law, the defendants insisted, that the judge ought to admit the testimony of witnesses, to prove the understanding or acceptance of merchants to the effect proposed, and the judge was of opinion, that the testimony was improper, and refused to admit it.
The plaintiffs then further offered to prove that the said paper or document, signed by the said Collector and: naval officer, aqd so given in evidence by them, was usually called a sea-letter,- which evidence was also objected to on the part of the-defendants, and refused to be admitted by the court.
The plaintiffs then' further offered to prove, on the said-trial, by four of the underwriters who had underwritten the same policy, prior to the above-named defendants, and hadpaid the loss, that their sense and understanding of the said terms, “ N. B. The vessel sails under a'sea-letter, without a register,” at the time of subscribing the said policy, was, that they imported, that the said brig sailed with such a document or paper, signed and sealed by the’ said collector and naval officer, as was given in evidenceby the said plaintiffs,'to which testimony the-defendants also objected, and the court also refused to 'admit the same.-
p. 538
The plaintiff»', on the said trial* further proved, that in pursuance of the act of the congress of the United, States, entitled, “ an act supplementary to the act entitled an act providing passports for the ships and vessels of the United States,” passed the 2d March, 1803, and the act therein referred to, the pass commonly called the Mediterranean pass, mentioned and intended in and by the said acts, according to the course and practice of the custom houses of the United, States, approved by the executive government thereof, would bo granted to a vessel sailing with such document or paper only as above set forth, signed and sealed by the Said collector and naval officer, as the said brig sailed with on the same voyage, and not to any vessel sailiug without such document or paper, and also without a register,
And thereupon the plaintiffs, by their counsel, insisted the law upon this evidence, and the premises, to be, that the said terms, “N. J3. The vessel sails under a sea letter", without a register,” as contained in the said policy, did not amount to a warranty that the said brig sailed with any other document or paper than the one above shown by the plaintiffs to have been on board of her; and they desired the judge so to charge the jury on the said trial ; but the counsel for the said defendants objected thereto, and the said justice refused so to do, but, on the contrary, did charge the said jury, that the said terms last mentioned did amount to a warranty on the part of the plaintiffs, that the said brig sailed on the said voyage with another document or paper called a sea-letter, according to the form of the sea-letter produced by the defendants, and that for the want thereof the said plaintiffs were not entitled to recover; in pursuance of which charge and opinions of the said justice, the said jury found a verdict for the defendants, upon which judgment has been rendered in their favour.
p. 539
Upon this bill of exceptions the cause was brought by writ of error to this court. The reasons assigned were the same as given by the supreme court. The cause was argued by Radclijf and Hoffman, for the plaintiffs in error, and Hanson and Pendleton, for the defendants in error. [See the arguments and authorities cited, on the motion for a. new trial, in the court below, vol. 1. p. 192.}
The Chancellor.
In the mode in which this cause has been presented for the consideration of the court, its decision must necessarily depend upon a simple point. That point is, whether the term sea-letter is so determinate, in its legal signification, as to admit of no incertitude in its appropriate and exclusive application to the species -of document described by that term in the policy; for it-is not, [#]and cannot now be contended, if the object of the policy is clear and unambiguous, if it has a plain and obvious meaning on its face, that parol proof can vary or contradict it. For if the terms of the policy are sufficient of themselves unequivocally and satisfactorily to express its legal intent; if the object to which it is to attach is described in language capable of a clear and certain application, that intent must prevail, and cannot be varied by resorting to the more fallible evidence of witnesses.
Should it, upon examination, appear, that the terms in which the policy is conceived are sufficient to afford their own exposition, then the evidence offered was properly overruled ; if they are not sufficient, then it was competent for the plaintiffs to prove the intent aliunde. The,, construction of mercantile instruments, it has been urged, should be liberal, agreeable to the real intent of the parties, and conformable to the usages of trade in general, and of the particular trade to which the contract relates.. The soundness of those positions is not to be questioned; but to give the intent effect, it should be expressed in the inode prescribed or permitted by law. The danger of, wandering from the form in which the parties have ar
p. 540
ranged their contract, in quest of extrinsic matters of elucidation, has always had a considerable influence on adjudications, 'involving questions of that nature. Hence, the rule to restrain them has been settled with great attention and care, and though there are still some diversities of opinion, as to its application to particular cases, it is now considered as a settled rule., that no parol proof is to be admitted to vary, impugn, or explain a written contract of plain and obvious meaning. It will be recollected, that every description of the properties of the subject insured, in the policy, whether inserted in its body, or introduced by way of explanatory note, as in this instance, is, by the settled rule of construction of policies, a warranty ; that a conformity to such description is strictly and literally exacted, it being immaterial with what view, or for what purpose it is made, on the ground, that its insertion is for the benefit of the insured, operating to reduce the premium, by providing for a diminution of the risk in the particulars to which it is intended to apply, or to identify the subject insured. It will also be recollected, that when the term usages of trade is made use of, it admits of an application, either to the general usages of trade, which compose the Lcnv of Merchants, of universal authority among commercial men in civilized societies, and forming one of the constituent parts of the laws of this state, as the general law of the land, or to usages of local origin, or prevailing in a particular branch of trade. The former arc considered in the nature of those positive laws, of which every member of the community is presumed to be conusant, and which are resorted to as.known and established tests of contracts, in all casos arising under them. The other depends upon the usage of the persons engaged in the traffick to which they apply, the knowledge of which is not legally imposed on the community, but derives its bindiug force from the supposed knowledge of the persons engaged in that particular spe
p. 541
cies of traffick, at the place, or in the trade in which it obtains. The latter may be proved by witnesses.
By the evidence offered and overruled in this case, it was not pretended to support a particular usage; it was to show, that the paper, denominated in the certificate of the collector and naval officer of the port of New-Yorlc, a certificate of ownership was, in the general acceptation and understanding of the term, sea-letter, between merchants, and between insurers and insured, within this state, at the time of making the said policy, and according to the commercial import of the same, a sea-letter. This evidence was not directed to the point of establishing a practice, which, in its locality, or otherwise, constituted a particular usage. It was to be the general acceptation and understanding, not in a particular trade, or at a particular place, but throughout the state ; not uniformly for ■ft series of years, but at tl\ti precise time of making the policy; thus attempting to substitute opinion for usage, and presenting the period of making the contract^ unconnected with any progressive practice, which is essential to establish it as a particular custom of trade, and undertaking to show the sense of the merchants, insurers, &c, insured throughout the state, at that time. If the terms in question were of naval invention, unknown to our laws» introduced into limited use, by . any of the variety of circumstances by which in the progress of the arts and the ever' changing pursuits of mankind, they are daily devised among artists, or others, in whose peculiar branch of business they arc used, there could be no rational .objection to admit the evidence of persons conversant with their import and meaning to explain them- But here the terms are formed in the codes of nations ;[1] they enter into the regulations of the external and maritime intercourse of the United. States with others; they have been introduced into their treaties with France, Spain
p. 542
and the Dutch;[2] they have received an executive exposition, by the practice, which has obtained, by its direction in the custom houses of the United States; and the term sea-letter is uniformly applied throughout, excepting in the law of congress,[3] which directs the secretary to prepare the form of passports, (the synonyma, in those treaties, of sea-letters,) but in that case the secretary devises the form, and in his letter transmitting the blanks to the . custom houses in this state, and which is in evidence in this cause, he denominates them sea-letters.
In the case of Rich v. Parker,[4] it was held, that the ... ... mi • sea-letter was an essential paper. I he inconveniences which might arise from not carrying it, are stated ; and . . , the reasoning on the subject would go a great way to decide this cause, if it required the application of the prin-iciples laid down in that case. The counsel who argued this cause on the part of the plaintiffs, entered into an examination of the utility of the sea-letter, as to the protec tion it afforded to the vessel against captures. It is not necessary to follow them in this inquiry, as the view with which the stipulation was made in this case is perfectly immaterial. It was an express stipulation, that the vessel carrying the cargo insured should sail with a sea-letter, pnd this must be shown to have been done to bring it within the policy.
Another object of the evidence offered and overruled, was to show, that the certificate was, according to its commercial import, a sea-letter. The commercial import must, of necessity, be tested by the general law of merchants, and is not to be collected from the evidence of witnesses. The certificate of ownership contains no intimation that it is in the nature of a passport. Its objects are exclusively to identify the vessel, its master, owner, cargo, and national character.
That the loss in this case did not happen by capture; t&at if; was occasioned by the ordinary perils of the sea,
p. 543
¿Iocs not place the plaintiffs in a better situation. If a wan'anfcy *s the nature of a condition precedent, the cargo was never in the situation described in the policy. ^ was no£ on *)0al’^ a vessel of the description indicated, and if so, the policy never attached,
For these reasons, I have no doubt that the evidence was properly rejected, and that the judgment of the supreme court ought to be affirmed.
In order to arrive at a just decision in this case, it is proper to consider it in two points of view. 1. Whether the word sea-letter has the precise technical meaning in law, with the document produced by the plaintiffs ? and, 2. If it has not, whether the doubts that may arise on this subject ought to be satisfied, or explained away by parol testimony ?
In Marshall, (page 317.) a distinction is made between a 'passport and sea-letter. The former is defined to be a permission from a neutral state, to a master of a ship, to proceed on the voyage proposed, and usually contains his name and residence, the name, description, and destination of the ship, with such other matters as the practice of the place requires. This document he describes as essentially necessary for the safety of every ship. The sea-letter, according to him, specifies the nature and quantity of the cargo, the place from whence it comes, and its destination, and is not so necessary as the passport[1] In 0U1. treaties with France, Holland, and Spain, sea-letters and passports are used synonymously; and are to express t^íe name> property, and bulk of the ship, and also the name and place of habitation of the master. They, therefore, relate solely to the vessel. A distinct provision is made relative to the cargo, and which renders necessary a certain document called a certificate, which is to specify the particulars of the cargo, the place from whence the ship sailed, and where she is bound. It is now contended by the plaintiffs, that the instrument denominated a
* See also, d'Air jur polit. d las presas, part 1. ch. 2. sec 3, 4, 5, 6.
p. 544
sea-letter is the certificate of ownership, given at the custom houses of the United States, to citizens of the United States, in cases where a register cannot be obtained. From this it appears, that much ambiguity and confusion have prevailed on the subject. According to the writer I have quoted, it refers solely to the cargo. According to the treaties above mentioned, it refers exclusively the ship, whether registered or unregistered; and, according to the principles set up by the plaintiffs, it applies only to unregistered vessels, entitled to certificates of ownership. It will, therefore,, require some attention and patience to find our way through the darkness which surrounds us.
It has been the policy of the United States, in common with'other commercial nations, to encourage their own ships. Our navigation act enumerates and describes certain vessels, and emphatically denominates them ships or vessels of the Unit:d States. Their distinguishing characteristics are, that they are built, owned, and commanded by citizens of this country. They are registered with the collector, and are entitled to a certificate, called a register. The register is of itself considered a Competent docu-rnent, to prove the ship American; and would, in most cases, serve as a sufficient protection against capture. But cases occur, wherein this register is not granted to vessels owned by citizens of the United States. The principal case is where the vessel is built out of the country. In such case, the collector cannot grant a register; but it being proper and necessary, that the owner should have some document to protect his property against the rapacity of cruisers on the ocean, and to establish his neutrality, a formula has been devised, and is granted, called a certificate of ownership. With a view to the encouragement of ship-building in this country, a discrimination is-also made in the duties of tonnage. Ships of the United States pay at the rate of 6 cents per ton; ships built with
p. 545
In the United States after a certain period, but belonging wholly, or in part, to foreigners, 30 cents per ton ; and all other ships, 50 cents' per ton. Hence, under both heads, of ownership and the place of building, all vessels are considered, by our laws, under four distinct views. 1. Vessels of the United States. 2. Vessels built in the United States, owned by foreigners. 3. Vessels built out of the United States, owned by citizens. 4. Vessels built out of the United Ssates, owned by foreigners.
Vessels of the first and third classes, being ow-ned by citizens, are entitled to the protection of the government. The second and fourth classes, being owned by foreigners, cannot receive any documents, which would, in the least, protect them from capture. To encourage onr own ship-building, vessels of the United States pay but a small duty of 6 cents. Vessels built, and owned here, by foreigners, pay a duty of 30 cents; and, if pur citizens will go into foreign countries to build, or to purchase vessels, they are put on the same footing as foreigners, owning foreign vessels, with regard to the rate of duties, although as citizens, they have a right to demand the protecting hand of the government,'for their property. Hence arises the division of vessels owned by citizens, into two [*]classesr vessels of the United. Stales, or registered vessels, and vessels belonging to the citizens of the United States, certifi~ cated, but not registered. The owners of the latter description of vessels, considering this certificate of ownership as a sufficient shield for neutral property, denominated it a sea-letter ; and it may have obtained that appellation at the time our first navigation act was passed, which was in the year 1789, some years before the letter from the secretary of the treasury, set forth in the bill of exceptions, was written. This term was, at a subsequent period, engrafted into our statute book, as I shall pre* sently show.
p. 546
lit the year 1793, when a general war was kindled Ifl “Europe, the President of the United States, in order that ©ur vessels might enjoy the benefits stipulated by treaties, and be generally protected against the depredations of the belligerents, ordered documents to be furnished from the custom-houses, to all ships and vessels belonging to ci-lizens of the United States. This document is denominated, in the letter of the secretary of the treasury, a_sea* letter, and is the formula of the passport adopted in the treaties, and was given to certificated, as well as to re-1 gistered vessels. This was a mere executive regulations unauthorized by any existing statute, and so it continued} until the 1st of June, 1796, when an act was passed, directing the-secretary of state to prepare a form, which, when approved.of by the President, should be deemed the form of a passport, for ships and, vessels of the United States. The form adopted, was the same as described in the treaties. It was so consiructed, in order that we might have the benefit of those treaties. The passports exhibited by the plaintiffs, were issued subsequent to 1796j and although conformable to the formulas prescribed in the treaties, they emanated from this statute. And here two remarkable circumstances occurred ; the term sea-letter in the treaties was dropt in the statute, and the word passport adopted; and the passport was only authorized to be granted to registered vessels. This must have been considered as a negation of the right of the executive, heretofore exercised, of granting passports to certificated vessels. Hence the certificate of American ownership, being their only guard, this certificate was, emphatically, denominated their sea-letter, or protection.
The case before us occurred in the year 1798, two years after the passing of the statute, authorizing the granting of passports only to registered ships. Inconveniences having been sustained from this discrimination, and certified ships frying thus deprived of so important a
p. 547
document, a law was passed on the 2d day of March, 1803, and directing, that every unregistered ship or vessel, owned by a citizen or citizens of the- United States, and sailing with a sea-letter, going to any foreign country, should be furnished with a passport, prescribed in the former act, for ships and vessels of the United States. This statute is one of the only two that contain the term sea-letter, and that.it is used here in the sense of a certificate of ownership, cannot be doubted. A passport is to be granted to a vessel owned by a citizen sailing with a sea-letter. The passport authorized by a former statute is precisely the same with the sea-letter or passport of the treaties. If, then, by the term sea-letter in this statute is intended the sea-letter or passport of the treaty, the provision is superfluous and idle, because it provides for what already exists ; and changing the terms to the construction insisted on by the defendants, the statute would read thus: “ that every unregistered ship sailing with a sea-letter, and owned by a citizen of the United States, shall be furnished with a sea-letter,” that is, provided with what it already possessed'. The only way to escape from this absurdity is to adopt the certificate of ownership as the true and legitimate sea-letter, But this is not all. Another statute was passed on the 14th day of April, 1802, where the word sea-letter is used precisely in the sense now contended for. This statute declares, that “ the second section of the act to retain a further sum or drawback, for the expenses incident to the allowance and payment thereof and in lieu of stamp duties on debentures,” shall not .be deemed to operate on unregistered ships or vessels, owned by the citizens of the United States at the time of passing the said act in those cases, where such ship or vessel, at that time, possessed a sea-letter, or other regular document, issued from a custom house of the United States, proving such a ship or vessel to be American property. This provision is intended to
p. 548
operate in favour of unregistered vessels, owned by citizens. And the term sea-letter is used as synonymous with a regular document issued by a custom house of the United States to certificated vessels.
I consider, therefore, the term sea-letter, although variously understood on former occasions, yet, as now adopted, naturalized, and legitimated in our statute book, and its meaning perfectly defined, in the sense contended for by the plaintiffs. Though mentioned in certain treaties as synonymous with transports, yet by statutes subsequently created, the term passport is exclusively used, and the word sea-letter transferred and attached to a different idea. The court ought, therefore, to have decided, that the legal, technical sea-letter, contemplated by the supreme legislature, and spoken of in our statutes, was the certificate of ownership, granted to unregistered vessels belonging to citizens of the United States.
If this view of the subject be well founded, the second head of inquiry, whether the court ought to have admit ted parol evidence to explain the written instrument, need hot be considered. If, however, there was any doubt or obscurity on this subject, parol testimony ought to have, been introduced in order to explain it. In this case, stating the controversy in the most favourable light for the defendants, there were two instruments, one legalized by treaty, and the other by statute, of the same denomination : two distinct ideas were attached to the same term. This, therefore, is as much a latent ambiguity as the case commonly cited of two individuals bearing the same name. The only mode to arrive at truth, to reach the meaning of the parties, was to have admitted parol explanations of the understanding of merchants and insurers. A warranty, says a celebrated writer on insurance, (Marshall, 249.) like every other part of the contract, is to be- construed according to the understanding of merchants, and does not bind the insured beyond the com
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mercial import of the words. If the legal import of sea-letter was ambiguous, its commercial meaning, applied to the contract, would have dispelled every shade of doubt.
In every view of the subject, therefore, I am of opinion, that the judgment of the .supreme court ought to be re» versed,
A majority of the court concurring in this opinion, it was, thereupon, ordered and adjudged, that the judgment given by the supreme court be, and the same is hereby «-eversed, there being error in the decision of that Court, in determining, that the paper writing, offered by the plaintiff in error, on the trial, was not a sea-letter, and that a venire facias de novo be awarded.
Judgment reversed.