p. 111of the seaman were taken out, and a prize-master and British seamen put on board. She was detained by the *blockading squadron, from the r¡|. 16th to the 2 7th of July, when the master was ordered on board the L admiral’s ship, and told, “We have thoughts of setting you at liberty, and in case we do, and deliver you your vessel and papers, what course will you steer, or what port will you proceed for ?” To which the master answered, that in case he got no new orders, he should continue to steer by his old ones. The admiral then said, “ that will be, I suppose, for Cadiz.” To which the master replied, “certainly, unless I have new orders.” Upon which the admiral said, “ that is sufficient; I shall send you to Gibraltar for adjudication.” Whereupon, the brig, without being liberated, was sent into Gibraltar, and condemned, on the grounds stated in the sentence. The libel and proceedings in the vice-admiralty were found by the special verdict. An appeal was prayed and granted from the vice-admiralty court, but it did not appear to have been prosecuted. The judgment in the court below was for the original defendants. This cause was several times argued, having been pending in this court ever since the year 1803.
It was now argued by Dallas and G. Lee, for the plaintiff in error, and by Lawle, for the defendants.
Argument for the plaintiff in error.
1. The plaintiff is entitled in the present action to support his claim, by the truth of the case, in opposition to the falsehood of the sentence. 2. The cause expressly assigned for condemning the vessel, is not a lawful cause of condemnation, tested by the law of nations, or by the treaty between this country and Great Britain.I. The question of conclusiveness of a foreign sentence of a court of admiralty, in a case of insurance, has never yet been settled in this court. It is res integra. In a question of principle, and where this court is bound by no authority or precedent, it will take the path which leads to justice.*lst. How does it stand upon general principles? By what . principle are we bound to enforce a foreign judgment ? Not that ■- of comity and reciprocity; for that would often be to sanction gross error and palpable injustice ; but upon the principle of public policy and convenience, and this can extend no further than is necessary to quiet the title to the thing acquired under such a sentence. So far as the title to the thing itself is concerned, a foreign sentence must be considered as conclusive, but no further. A foreign municipal judgment, when brought into our courts to be enforced, is only primd facie evidence ; but when set up as a defense, it is conclusive, because it is the decision of 'that tribunal to which the plaintiff has chosen to resort. It is, therefore, conclusive against him, but not in his favor. Judgments upon attachments, which change the property of the thing attached, are conclusive as to the title of the thing, but not as to the question of debt between the principal creditor and debtor.Why should a sentence of condemnation as prize, be conclusive, in a suit for indemnity against capture ? Public policy is not concerned in the question whether the insurer or the assured should bear the loss. The underwriter promises indemnity against capture and its effects, if the property be neutral. The assured warrants the neutrality, but not the acquittal in a foreign prize court. He is bound to sue, labor and travel for the benefit of the underwriter, in this case, as well as in others. But the loss by capture
p. 112and condemnation is the very peril insured against; and all the assured is bound to do, is to prove that his property was really neutral; he does not take upon himself the risk of the injustice of foreign courts, any more than the injustice of any other department of a foreign government. What is it, but the injustice of belligerent nations, which makes a difference between a war risk and a peace risk upon neutral property? And what consolation is it to the assured, that his property is lost by the injustice of a court, rather than by that of the executive power? All that is re- ¡,... -| quired of him is good faith; he J faith of does not *answer for the good a foreign tribunal; a tribunal, too, whose decisions are professedly not founded upon the principles of abstract right, but upon the will of the sovereign.The capture alone gives the right to abandon, and consequently, to recover for a total loss. The subsequent claim and litigation is, in truth, by and for the benefit of the underwriter. The assured is only bound to prove the neutrality, in the suit between the underwriter and himself. The doctrine that all the world are parties to a suit upon a question of prize, is a mere fiction, and is never applied to any question but that of the title to the thing itself.2d. How does the principle stand upon precedents of other nations ? Upon a question of general law, or the law of nations, we are not to look to the practice of one nation only. We are as much bound by the precedents of France, as we are by those of England, since our revolution. In France, we are told by Emerigon, the sentence of a foreign prize court is not conclusive upon collateral cases. It only protects the title to the property acquired under it. In England, a system has been raised; but like an inverted cone, it rests only on a single point. The case of Hughes v. Cornelius, reported in 2 Show. 232 ; T. Raym. 473 ; and Skin. 59, is the only basis upon which the fabric is erected. This case only decides, what we admit, that a foreign sentence is conclusive as to the title in the thing itself. This ,is the only reported ease, prior to the revolution ; and thus the question remained until the case of Bernardi v. Motteux, Doug. 575, which was decided in the year 1781. The point of that decision was, that a sentence of condemnation by a foreign court of admiralty was not conclusive evidence of a breach of the warranty of neutrality, if the sentence does not appear to have proceeded oqi uPon that ground. *Park, p. 365, has given the result of all the cases, -* and deduces this general doctrine.1. “ That wherever the ground of the sentence is manifest, and it appears to have proceeded expressly upon the point in issue between the parties or—2. “ Wherever the sentence is general, and no special ground is stated, there it shall be conclusive and binding; and the court here will not take upon themselves, in a collateral way, to review the proceedings of a forum having competent jurisdiction of the subject-matter.”3. “ But if the sentence be so ambiguous and doubtful, that it is difficult to say on what ground the decision turned ;” or—4. “If there be color to suppose that the court abroad proceeded upon matter not relevant to the matter in issue, there, evidence will be allowed in order to explain.” And—5. “If the sentence, upon the face of it, be manifestly against law and justice, or be contradictory, the assured shall not be deprived of his indem
p. 113nity; because, to use the words of Mr. Justice Buller, any detention by particular ordinances or decrees, which contravene, or do not form a part of the law of nations, is a risk within a policy of insurance.”The counsel for the plaintiff commented at large upon the cases of Salouci v. Johnson, Park 362 ; Lothian v. Henderson, 3 Bos. & Pul. 516 ; Geyer v. Aguilar, 7 T. R. 681 ; Garrels v. Kensington, 8 Ibid. 230; Calvert v. Bovill, 7 Ibid. 526 ; Kindersly v. Chase, in the cockpit, decided by Sir W. Grant, Park 363 (5th ed.) ; Mayne v. Walter, Ibid. 363 ; Pollard v. Bell, 8 T. R. 134 ; Bird v. Appleton, Ibid. 563 ; Price v. Bell, 1 East 663 ; Bearing v. Christie, 5 Ibid. 398 ; Baring v. Clagett, 3 Bos. & Pul. 212 ; and Christie v. Secretan, 8 T. R. 192 ; from all which they drew the conclusion, that according to English precedents, which, however, they denied to be authorities in this court, except the *case of Hughes v. Cornelius, a foreign sentence of condemnation is not conclusive evidence of the want of neutral character, unless it proceeds upon a ground warranted by the law of nations, or by treaties between the countries of the captor and the captured.
3d. As to domestic precedents, they are not decisive. In New York, the law is finally settled against the conclusiveness. 1 Caines’ Cas. 7 ; 2 Ibid. 217; 3 Caines 213 , 240. But in the supreme court of Pennsylvania, the question is still sub judice, as it is in most of the other states.II. The cause expressly assigned for condemnation is not a lawful cause, either under the law of nations, or the treaty between this country and Great Britain. The capture itself was a total loss, and gave the right to abandon. At the time of abandonment, there was no restitution. The sentence is not a decree of enemy property, nor generally as lawful prize, but it is a condemnation on special grounds. 1. That she was cleared out for Cadiz, a port actually blockaded : 2. That the master persisted in his intention of entering that port, after warning from the blockading force, not to do so, in direct breach and violation of the blockade.It is not stated, that the blockade was known at the time of her sailing, nor that' any attempt was made to enter Cadiz, after notice. The special verdict finds that the blockade did not exist, at the time of her sailing ; and that after being verbally notified of the blockade, the vessel was, at no time, at liberty, so that she could have attempted to enter the port. That although the register was indorsed, yet the master had no knowledge of it, until after his arrival at Gibraltar. The offence charged is persisting in an intention to do what he had no power to do. This intention is inferred from the- conversation between the master and the admiral, which is detailed in the special verdict, and which, on the part of the latter, was insidious, and calculated to *entrap. From the effect of such conversations, it was the duty of the court to protect the master. The Mercurius, 1 Rob. 7 . The answer *- of the master was honest, simple and proper; “that in case he got no new orders, he should steer by his old ones.” This was no more than his duty. Those new orders, if given by the admiral, would have been obeyed, and would have justified the master in his deviation.But even an intention to violate a blockade, unless followed by some act, such as sailing with that intent, &c., is no cause of condemnation under the law of nations. Maley v. Shattuck, 3 Cr. 488 ; The Betsey, 1 Rob. 280 ; The Spes and Irene, 5 Ibid. 76 ; The Shepherdess, Ibid. 235 ; Vattel, lib. 3,
p. 115commerce of England was in its infancy. It is the application only which is modern.In the Case of Copyhold Leases, 4 Co. 29 a, it was decided, that the sentence of the ecclesiastical court, dissolving the marriage, was conclusive evidence that the first marriage was void, and that the issue of the second marriage was legitimate. So, in Kenn’s Case, 7 Co. 42, 48, it was holden, “ that the sentence ” of the ecclesiastical judge “ should conclude, so long as it remained in force.” So, in Buller’s N. P. 244, it is said, “ In an action upon a policy of insurance, with a warranty that the ship was Swedish, the sentence of a French admiralty court, condemning the ship as English property, was holden conclusive evidence. This case is taken from The Theory of Evidence, published in 1761, and, consequently, was before our revolution. It seems to be the first case noticed in the books, where the principle was applied to a case of insurance. The case of Fernandes v. De Costa, Park 177-78, was in the 4th George III., long before our revolution. In that case, the sentence of the French prize court was holden tobe conclusive evidence in favor of the underwriter. The counsel cited also Jones v. Bow, Carth. 225, where the sentence of the spiritual court was holden to be conclusive. Also, the Duchess of Kingston’s Case, 11 State Trials, and the case of Moses v. Macferlan, 2 Burr. 1005 ; and Walker v. Witter, Doug. 1; Galbraith v. Nevil, Ibid. 5, in note; Lord Kaim’s Principles of Equity, 369-75.Thus stood the cases, before the revolution. The principle of law was fixed and general; and all the later decisions are but applications of the principle to particular cases. Once admit the case of Hughes v. Cornelius to be law, and the whole doctrine, to the extent *to which it has been r:¡.. „. carried in England, flows as a necessary consequence. As between L the parties, it is admitted to be conclusive, and as to the title to the thing, the question is at rest. The plaintiff in this case was party to the suit in the vice-admiralty at Gibraltar. He is bound by the sentence, at all events, however it might be with regard to another person. As to him, it has passed in rem, judieatam. If the property in the thing has passed, why not the title to its value? The title is as much gone from the underwriter, as it is from the assured. He is equally precluded from the chance of recovery, and from the benefit of the abandonment. By the sentence, the property is changed. It is not by an act of arbitrary power, or of superior force, or by an act of legislation, but by the judgment of a court of competent, peculiar and exclusive jurisdiction. For among nations, the court of the captor is as much a court of peculiar and exclusive jurisdiction of the question of prize, as the ecclesiastical courts are in England of ecclesiastical causes.It is the adjudication of a court to whose jurisdiction he has submitted, by putting in his claim, and before which he was bound to support the neutrality of the property, in order to give him a right to recover against the underwriters. They do not undertake to support the neutrality of the property. That is entirely his business, and if he fails to do so, and by that means the property is lost, the loss must fall upon him.It is of less importance which way the question is decided, than that it should be settled. When the law is once ascertained, merchants and underwriters will make their contracts accordingly, and provide against the effect of foreign sentences, if they think proper.The warranty of neutrality necessarily refers to the decision of foreign
p. 117was Portuguese, as warranted. The case of Rapalje v. Emory was a foreign attachment, and the only decision upon it was to give validity to the title of the property condemned. In the case of Vasse v. Ball, the court did not decide the sentence to be conclusive, but went into an examination of its merits.The common-law courts have exclusive jurisdiction of questions of insurance, and wherever the question of neutrality is necessarily involved in a question of insurance, they have as complete jurisdiction to try the question of neutrality, as a court of prize has. That court which has jurisdiction of the principal question, has necessarily jurisdiction of all incidental questions. The underwriter takes upon himself the risk of unlawful capture, and the court which is to decide upon his liability in the particular case, must necessarily decide whether the capture were lawful or not; and if found to be unlawful, the plaintiff must recover.*3. No words of the master could amount to such conduct as qJ_ would exonerate the underwriters. He did no act whatever. *-(all the seven judges being present), delivered the opinion of the court as follows, viz : — This suit is instituted to recover from the underwriters the amount of a policy insuring the brig John, on a voyage from Charleston to Cadiz. The vessel was captured on her passage, by a British squadron, then blockading that port, was sent into Gibraltar for adjudication, and was there condemned by the court of vice-admiralty as lawful prize. The assured warrants the ship to be American property ; and the defence is, that this warranty is conclusively falsified by the sentence of condemnation.
The points made for the consideration of the court are, 1. Is the sentence of a foreign court of admiralty conclusive evidence, in an action against the underwriters, of the facts it professes to decide ? If so, 2. Does this sentence, upon its face, falsify the warranty contained in the policy ? If not, 3. Does the special verdict exhibit facts which falsify the warranty ?
The question on the conclusiveness of a sentence of a foreign court of admiralty having been more than once elaborately argued, the court reluctantly avoids a decision of it at present. But there are particular reasons which restrain one of the judges from giving an opinion on that point, and another ease has been mentioned, in which it is said to constitute the sole question. In that case, it will, of course, be determined.
*Passing over the consideration of the first point, therefore, the court proceeded to inquire whether this cause could be decided on the L second and third points. Admitting, for the present, that the sentence of a foreign court of admiralty is conclusive, with respect to what it professes to decide, does this sentence falsify the warranty contained in this policy, that the brig John is American property ? The sentence declares “ the said brig to have been cleared out for Cadiz, a port actually blockaded by the arms of our sovereign lord the king, and that the master of said brig persisted in his intention of entering that port, after warning from the blockading force not to do so, in a direct breach and violation of the blockade thereby notified.”
The sentence, then, does not deny the brig to have been American property. But it is contended by the counsel for the underwriters, that a
p. 120explains what is uncertain in the sentence. The special verdict shows that the vessel was seized on her approaching the port of Cadiz, without previous knowledge of the blockade ; that she never was turned away, and “ permitted to go to any other port or placethat she was “ detained ” for several days, and then sent in for adjudication, without being ever put into the possession of her master and crew, so as to enable her either “ again to
attempt to enter” the port of Cadiz, or to sail for some other port; that while thus detained, the commander of the blockading squadron drew the master of the John into a conversation, which must be termed insidious, since its object was to trepan him into expressions which might be construed into evidence of an intention to sail for Cadiz, should he be liberated; *°02l availing himself of some equivocal, unguarded, and, perhaps, ■* indiscreet answers on the part of the master, the vessel was sent in for adjudication ; and on those expressions, was condemned.
This court is of opinion, that these facts do not amount to an attempt again to enter the port of Cadiz, and therefore, do not amount, under the treaty between the United States and Great Britain, to a breach of the blockade of Cadiz. The sentence of the court of vice-admiralty in Gibraltar, therefore, is not considered as falsifying the warranty, that the brig John was American property, or as disabling the assured from recovering against the underwriters in this action, and the testimony in the case shows that the blockade was not broken.
The judgment of the circuit court is to be reversed, with costs, and it is to be certified to that court, that judgment is to be entered on the special verdict for the plaintiff.
Judgment reversed.