Richette v. Stewart — 1 U.S. 317

Majority

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Richette v. Stewart et al.

Syllabus

Evidence.

In an action on a policy of insurance, & prods verbal made by the master of the vessel (who was also a part-owner) on arriving at a French port, and delivered into the admiralty there, but not on oath, was held not to bo admissible in evidence.

The protest of the master of a vessel must be made at the first port at which he arrives, unless under particular circumstances.

This was an action upon a policy of insurance on the brig La Catiche ; and the circumstances of the case, so far as they respect the decision of the court, were these :—

The brig having sustained considerable damage by a storm, the master, who was also a part-owner, was compelled to deviate from his proper voyage, and accordingly, bore away for Cape Franpois. When he arrived there, on the 28th day of August 1784, he delivered a proems verbal (which had been drawn up at sea, recently after the storm), into the admiralty, in order to obtain a survey of the vessel; but this instrument was merely a relation of facts, unattested by the oath of the master, or of any of the mariners who had subscribed it as witnesses. A copy of it being, afterwards, however, brought to Philadelphia, the master alone, on the 4th day of December 1784, went before a notary-public of that city, and in form of a protest, swore to the authenticity of the copy, and the truth of its contents.

When the present action was instituted, a commission issued to obtain a transcript of the proceedings in the Admiralty of Cape Franpois ; and the proeds verbal being returned with the other official documents, certified by ihe judge, under the seal of that court, the plaintiff’s counsel, at the trial, which came on the 4th of July, offered to read it in evidence to the jury.

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But it was objected by the other side, that the procés verbal, taken by itself, was not admissible as evidence, because it had not been rendered upon oath ; and that, even connecting it with the subsequent protest at Philadelphia, it ought, nevertheless, to be rejected ; because no protest is valid to this purpose, that has not been made at the first port in which the master arrives, after a misfortune has happened to his vessel. See Westcott 432; 1 Magens 87; Beawes 140.

The plaintiff’s counsel, in reply, observed, that although the strict formalities required in this country, had not been pursued, yet if the proceeding was conformable to the lex loci, it ought to be received. They contended, therefore, that as the procos verbal was lodged in a competent office, and is duly certified under the seal of the admiralty, this court, in respect to a foreign jurisdiction, is bound to presume that it was regularly taken according to the laws of France. Besides, the rule in regard to all exemplications, *rcndered it necessary that the whole record should be transmitted and [*318 certified ; and whatever may be its weight and effect, the whole ought also to be submitted to the jury. See Valin, Ord. de Fr. 190; Doug. 554. Park Insurance 404; Bull. N. P. 227.

Though we had some doubt, at first, whether, connected with the subsequent protest, the procos verbal might not be given in evidence, yet we are now convinced, that its admission would be highly improper. The declaration of any man, delivered either in a Pagan or Christian court, without the solemnity of an oath, is not evidence of the fact asserted, oven where the witness is subject to no bias ; much less, where he is immediately interested ; as the master was in the present instance, being a part-owner of the vessel.

The case in Doug. 554, does not apply to that before us ; nor can the procos verbal be considered as a judicial proceeding. With respect to the argument, that it is a part of the exemplification, it is sufficient to observe, that if a deed of any kind had been left with the judge of the admiralty, he would, probably, have certified it in the same manner, without moaning in any degree to establish the validity, or to affect the legal operation of the instrument.

The reading of the proems verbal was accordingly overruled.

After stating some other points in the cause, the plaintiff’s counsel offered to read the protest made in Philadelphia, on the 4th day of December 1784; to which their opponents likewise objected, for the reason already mentioned, that it was not made at the first port, and also, on account of the length of time which had intervened.

By the Court. — The question now before us, is, in fact, whether a protest must bo made in the first port in which the master arrives after his vessel has been damaged? This is a matter of great importance, upon which little information can be derived from the books ; and therefore, we were in hopes to have heard it more fully discussed on general principles.

We think, however, that to admit the evidence of a master of a vessel, in excuse of his own conduct, the greatest precaution should be used, and every possible restriction imposed. Hence, it is the rule in France, that

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the protest shall be made within twenty-four hours after the arrival at the next port; and here, as well as in England, it ought to be accompanied by the attestation of a majority of the crew. See Valin, Ord. de Fr. 190; 1 Magens 160.

Levy, Ingersoll and Sergeant, for the plaintiff. Lewis and Wilcocks, for the defendants.

The reason is evidently to prevent any subsequent collusion ; and we cannot but think that it is the safest as well as the most certain mode of proceeding. If, indeed, any particular circumstances should render it impossible to comply, they will always form an exception to the rule ; but, as that is not pretended on the present occasion, we are unanimous in rejecting the evidence,^[1]

As soon as this decision was pronounced, the plaintiff voluntarily suffered a nonsuit.

(a) (a) In Boyce v. Moore, 1 Yeates 201 ; s. c. 2 Dall. 196 ; the court said, “We adhere to our determination in Richette v. Stewart,” and accordingly reject a protest not made at the first port. See also the note to Nixon v. Long, ante, p. 6.