7 U.S. 210
3 Cranch 210
2 L.Ed. 414
HALLET AND BOWNE
JENKS AND OTHERS.
February Term, 1805
ERROR TO THE COURT FOR THE TRIAL OF IMPEACHMENTS
AND CORRECTION OF ERRORS OF NEW YORK
A vessel belonging to citizens of the United States, in the year 1799, driven by distress into a French port and obliged to land her cargo in order to make repairs, and prevented by the officers of the French government from relading her original cargo and from taking away anything in exchange but produce or bills, might purchase and take away such produce without incurring the penalties of the nonintercourse act of 13 June, 1798. And such voyage was not illegal, so as to avoid the insurance.
Even if an actual and general war had existed between this country and France and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted by the officers of the port to sell the residue and purchase a new cargo, it would not be deemed such a traffic with the enemy as would vitiate the policy upon such new cargo.
This was a writ of error to The Court for the Trial of Impeachments and Correction of Errors in the State of New York under the Act of Congress of 24 September, 1789, ? 25, vol. 1, p. 63, which gives the Supreme Court of the United States appellate jurisdiction upon a judgment in the highest court of a state in which a decision in the suit could be had where is drawn in question the construction of any clause of a
statute of the United States and the decision is against the right, privilege, or exemption specially set up or claimed by either party under such statute.
The action was upon a policy of insurance, and the only question to be decided by this Court was whether the risk insured was illegal under the Act of Congress (commonly called the Nonintercourse Law) of 13 June, 1798, vol. 4, p. 129. For although another question appears to arise upon the record, viz., whether a condemnation in a foreign court as enemy’s property be conclusive evidence of that fact, yet this Court is prohibited by the same 25th section of the act of 1789 to consider any other question than that which respects the construction of the statute in dispute.
On the trial of the general issue, a special verdict was found containing the following facts:
That on 27 April, 1799, the defendants, for a premium of 25 percent, insured for the plaintiffs, against all risks, $1,000, upon twenty-five thousand pounds weight of coffee, valued at 20 cents per pound, on board the sloop Nancy from Hispaniola to St. Thomas. That in the margin of the policy was inserted a clause in the following words: “warranted the property of the plaintiffs, all Americans,” but that the words “all Americans,” were added after the policy was subscribed; that the sloop Nancy was built at Rhode Island, and belonged to citizens of the United States resident in Rhode Island as well when she left that state as at the time of her capture, and, being chartered by the plaintiffs, sailed from Newport in Rhode Island on 12 December, 1798, on her first voyage to Havana; that in the course of the said voyage she was compelled, being in distress, to put into Cape Francois in the Island of Hispaniola, a country in the possession of France, where she arrived on 5 January, 1799; that the captain and supercargo of the sloop were part owners of the cargo and are two of the plaintiffs in this suit; that having so put into Cape Francois, the cargo was landed to repair the vessel; that the public officers, acting under the French government there,
took from them nearly all the provisions on board the sloop, and the captain and supercargo were permitted to sell and did sell the remainder to different persons there; that the captain and supercargo made a contract with the public officers by which they were to be paid for the provisions in thirty days, but the payment was not made; that with the proceeds of the remaining parts of the cargo they purchased the whole of the cargo which was on board at the time of the capture and also seventeen hogsheads of sugar, which they sent home to New York on freight; that the said officers forbade the said master and supercargo of the sloop from taking on board the cargo landed from the said vessel or from conveying from the said island any specie, by reason whereof they were compelled to sell the same and to take the produce of that country in payment; that the sloop, with thirty thousand weight of coffee on board, twenty-five thousand pounds weight of which was intended to be insured by the present policy, sailed from Cape Francois on 23 February in the year last aforesaid on the voyage mentioned in the policy of insurance, having on board the usual documents of an American vessel; that the sloop, in the course of her said voyage, was captured by a British frigate and carried into the Island of Tortola and vessel and cargo libeled as well for being the property of the enemies of Great Britain as for being the property of American citizens trading contrary to the laws of the United States; that at the time of the capture of the sloop, besides the documents aforesaid, the following paper was found on board:
“Liberty, Safe Conduct, Equality — At the Cape, 11th Thermidor, sixty year of French Republic, one and indivisible. The General of Division and private agent of the Executive Directory at St. Domingo requests the officers of the French navy and privateers of the Republic to let pass freely the American vessel called the Master, property of Mr. E. Born Jenks, merchants at Providence, State of Rhode Island, in the United States, arrived from the said place to the Cape Francois for trade and business. The Citizen French Consul, in the place where the said vessel shall be fitted out, is invited to fill with her name and the captain’s
the blank left on these presents, in attestation of which he will please to set his hand hereupon.”
“GAUTHIER, the General Secretary of the Agency”
Which paper was received on board the sloop at Cape Francois and was on board when she left that place; that the property insured by the policy aforesaid was claimed by the said Zebedee Hunt and was condemned by a sentence of the said court of vice-admiralty in the following words:
“That the said sloop Nancy and cargo on board, claimed by the said Zebedee Hunt, as by the proceedings, will show to be enemy’s property, and as such or otherwise liable to confiscation and condemned the same as good and lawful prize to the captors.”
That the plaintiffs are Americans, and were owners of the property insured, and that the same was duly abandoned to the underwriters.
That part of the act of Congress which the underwriters contended had been violated by the defendants in error is as follows:
“Sec. 1. Be it enacted . . . that no ship or vessel, owned, hired or employed wholly or in part by any person resident within the United States, and which shall depart therefrom after the first day of July next shall be allowed to proceed directly or from any intermediate port or place to any port or place within the territory of the French Republic or the dependencies thereof, or to any place in the West Indies or elsewhere under the acknowledged government of France, or shall be employed in any traffic or commerce with or for any person resident within the jurisdiction or under the authority of the French Republic. And if any ship or vessel, in any voyage thereafter commencing and before her return within the United States, shall be voluntarily carried or suffered to proceed to any French port or place as aforesaid or shall be employed as aforesaid contrary to the intent hereof, every such ship or vessel, together with her cargo, shall be forfeited, and shall accrue. . . . ”
Sec. 2 enacts that
“After 1 July, 1798, no clearance for a foreign voyage shall be granted to any ship or vessel owned, hired or employed wholly or in part by any person resident within the United States until a bond shall be given, in a sum equal to the value of the vessel and cargo with condition that the same shall not, during her intended voyage or before her return within the United States, proceed or be carried directly or indirectly to any port or place within the territory of the French Republic or the dependencies thereof or any place in the West Indies or elsewhere under the acknowledged government of France unless by distress of weather or want of provisions or by actual force or violence, to be fully proved and manifested before the acquittance of such bond, and such vessel is not and shall not be employed during her intended voyage or before her return as aforesaid in any traffic or commerce with or for any person resident within the territory of that republic or in any of the dependencies thereof.”
June 13, 1798, vol. 4, p. 129.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court to the following effect:
The Court is of opinion, according to the best consideration it has been able to give the subject, that this
case is not within the Act of Congress of 1798, usually called the Nonintercourse Law.
It is contended by the counsel for the defendant that the circumstances stated in the special verdict do not show an absolute necessity for the trading therein described. And it is said the plaintiff might have abandoned the property and sought redress of his government, and that it was his duty to do so rather than violate the laws of his country. But the Court is of opinion that the act of Congress did not impose such terms upon a person who was forced by stress of weather to enter a French port and land his cargo, and was prevented by the public officers of that port to relade and carry it away.
Even if an actual and general war had existed between this country and France and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted by the officers of the port to sell the residue and purchase a new cargo, I am of opinion that it would not have been deemed such a traffic with the enemy as would vitiate the policy upon such new cargo.
The terms of the act of Congress seem to imply an intentional offense on the part of the owners.
The case put of a French agent going to Havana and there purchasing the cargo for the use of the French government under a preconcert with the owners would certainly be an offense against the law, but when there is no such intention, when the vessel has been absolutely forced by stress of weather to go into a French port and land her cargo, when part has been seized for the use of the government of France, and the master has been forbidden by the public officers of the port to relade the residue and to sell it for anything valuable except the produce of the country, the mere taking away such produce cannot be deemed such a traffic as is contemplated by the act of Congress.
Judgment affirmed, with costs.