CONSTITUTIONAL COURT,
CHARLESTON,
MAY, 1802.
Williamson & Fitzsimons v. Tunno & Cox.
A mere intention to enter a 'blockaded port, without any actual attempt to do so after being warned off, is no breach of the blockade ; and no ground of condemnation, either by the general law of nations, or by the treaty between the United States and Great Britain : and where an American vessel and carg-o were condemned, by a British court of admiralty, for persisting in an intention to enter a blockaded port; held, that the condemnation was illegal, and that the insurers were liable.- [vide 2 Bay, 388, S. G., and 4 Cranch, 185, S. P. ]
A sentence of condemnation; by a foreign court of admiralty, which appears, on the face of the proceedings, to have been founded on facts, which do not warrant the judgment, is not conclusive of the legality of the condemnation, in a question between the insured and the underwriters. [Il>. et vide Blacklock & Bower v; Stewart, et al. 2 Bay, 863.]
This Was ah action of Assurnpsil on a policy of insurance on the cargo of the brig John, from Charleston to Cadiz, The vessel sailed, and was captured off the coast of Spain, by a British squadron, near Cadiz; and was subsequently libelled, and condemned, by the British vice-admiralty court at Gibraltar, for an alleged breach of blockade. The sentence of condemnation stated, “ that the said brig cleared out for Cadiz, a port actually blockaded by the British forces ; and 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 so notified.” There was a Variance between the libel and the decree of condemnation : the former alleging an actual attempt to enter the port of Cadiz, after notice of the blockade : and also, that the brig and cargo were enemies property : whilst the decree stated, only, that the master persisted in his intention to enter, &c. It was very clearly established, in evidence, that the brig and cargo were both, bona fide American property; and that the master had made no actual attempt to enter the port, after notice of the’ blockade : that in fact it was impossible for him to do so, as both he and the vessel were detained, from the moment when she was first boarded by the blockading squadroD. It appeared, however, that the master of the brig having been carried on board the admiral’s-ship, was asked by the commanding officer, where he would go in-*152case he was released ; to which he replied, that he would go into Cadiz. - : . .
Th® jury, under the charge of Grimice, J., who presided at-the trial, found, for th,e plaintiffs ; and the defendants now moved . for a new trial, on the ground of misdirection, and that evidence i2a¿| 'been improperly admitted to invalidate the decree of condemnation. - ......... ,
Desaussure, and Ford,'for the defendants,
argued,-that by the . law of nations, every power engaged in a war, may. prohibit all Commerce whatever with the enemy, in such places as such power is able to keep so blockaded, as to prevent every foreigner from entering : and that in such cases .penalties may.be attached to the transgression of such prohibition, which may be extended to., the confiscation of goods. or vessel. Martens, 318., Vatte!, . 508; If the port ot Cadiz had not been blockaded,' citizens of the United States, being a .neutral power,", might, lawfully . have transported thither, although a port of one of the belligerent, powers, any articles of merchandize, which are not commonly denominated contrabrand of war; but all commerce having been prohibited on account of the blockade, in Which case éVen provi. sions are contraband, an attempt to enter with any soft of supplies/, which might tend to strengthen the place, or enable it to hold out longer, was a breach of a lawful prohibition, and a violation of the , law of nations/ which subjects the vessel and goods to capture and confiscation." Martens, 323. Vatlel, 505.
But besides the general law, the treaty between the United States and Great Britain expressly provides, that if a vessel of either power, shall, after notice, attempt to enter a blockaded port, she and her cargo shall be liable to confiscation.
Then the only question s, whether the brig John, and her cargo, were condemned for a violation of blockade; and on this point the! decree of the vice-admiralty court at Gibraltar is conclusive. The customary, as well as the conventional law of nations, autho. rizes every power' to institute courts of admiralty, with jurisdiction to determine on the legality" of prizes. Martens, 323. And on such trials the original proprietors. must prove, that the vessel is not a 'lawful prize! lb. The sentence of such foreign tribunals is conclusive, evidence of all matters of which they' have cognizance ; and it has been so frequently held in actions to recover, on' an insurance, for a loss by capture. Esp. Dig. 145. It would have been conclusive for the plaintiffs, and it must be equally so fpr the defendants, in this casé. ltr is a fundamental principle, and' *153one not to be shaken, that the grounds of a condemnation made by a foreign tribunal, in a case properly within its jurisdiction, cannot be examined into, nor its legality questionéd. lb»- Park, 363. 'T Jil. Kep. 238. '
The sentence against the brig John and cargo, expressly declares, that the condemnation was for a violation' of blockade ; and that sentence was conclusive of the question. His honor erred in admitting testimony to invalidate it, and the jury err^d in overruling it by their verdict.
The result of the case is, that the vessel' and cargo were confiscated, because the master persisted in his design to enter a besieged-place, after having been warned off; and the vessel and cargo have been lost by his folly. This is not one of the risks covered by the policy. The insurers are not liable for the conduct of the master, unless it amounts to barratry, and it does not amount to barratry in this case. The defendants, therefore, are not liable, and a new trial must be awarded.
The plaintiffs’ counsel were stopped by the court.
Per curiam.
The underwriters are bound to know every cause which may occasion natural perils ; and also to take notice of all political dangers. 1 Esp. Dig. 72. Park, 195. The insured gave notice of the loss of the brig to the underwriters, as- soon as they heard of the disaster, and abandoned to them; and they have a right to recover for a total loss. Esp. Dig. 80, 83. The only question in this case, therefore, is, whether the cause of capture and condemnation was lawful, and such as discharges the-underwriters. It is urged that the decree is conclusive, that the brig John had violated the blockade of Cadiz.; but this does not appear by the decree itself. The libel, it is true, charges an attempt to enter that port; but the sentence seems^to proceed on the ground on an intention on the part of the master of violating the prohibition to enter the place, and that unless he had been restrained by the captors he would have attempted to enter.' The intention, however, can be no just ground of condemnation, unless it be manifested by some actual, overt-attempt, to carry the intention into effect; and this is, in fact,-negatived by the decree itself. The grounds of condemnation, as they appear -on the face of the decree, containing the sentence of the vice-admiralty court, are, therefore, insufficient; and the sentence is not warranted by the premises, but is altogether unjust, and in violation of the law of nations. It cannot then be conclusive on the parties in this case. Esp. Dig. 145. Park, 363, 415. 8 T. T. 434.
*154Looking to the evidence, the injustice and illegality of the decree are still more palpable. The very existence of an actual blockade is diputable ; but it is perfectly clear, that the master of the brig knew nothing of a blockade until he was boarded : and it is equally clear, that he made no attempt to enter the port, after notice, although that was his destination. In fact, it was physically impossible for him to make any such attempt, for he and his vessel were detained by his, captors, from the moment when they were first boarded; and no opportunity was ever afforded to make an attempt to enter the port of Cadiz, or any other port. It is true, that he expressed an intention, if he were set at liberty, to enter that port; but even if he were not trepanned into this declaration, by the idea being held out to him, that he might go where he pleased, this declaration did not warrant the condemnation. Giving it the worst meaning, it amounts to. nothing. It was not an attempt to enter the port; and it would have been time enough to capture, when he had made the attempt. The 18th article of the treaty with Great Britain exposes to seizure and condemnation, vessels which persist in the attempt to enter a blockaded port, after being warned off. Here there was no such attempt; and persisting in the intention to enter, without any attempt to execute the intention, is not one-of the cases specified in the treaty.
Without looking to the evidence, however, on this point, the sentence of condemnation is, on the face of the proceedings, unwarrantable and unjust; and the insurers are liable.
Motion for a new trial discharged.