9 Bosw. 361 22 N.Y. Super. Ct. 361

Samuel A. Swinnerton et al., Plaintiffs and Respondents, v. The Columbian Insurance Company, Defendants and Appellants.

1. In an action to recover on a policy of insurance on a vessel, the plaintiff proved, among other things necessary to make out their case, that the vessel, being at the port of Norfolk, Virginia, in April, 1861, was seized and sunk in the channel, by a body of men assuming to act under authority of the State of Virginia, but without any offense on the part of the master, or any charge against hitn, and that he attempted to obtain both civil and military protection, but without success.

Held, that this was not within the usual exception in the policy by which the insurers were warranted “free from loss or expense arising from capture, seizure, detention, or the consequences of any attempt thereat;” but was an act of lawless violence, by persons coming within the description in the policy of “pirates, rovers and thieves.”

2. In such a case, evidence on the part of defendants, that at the same time a number of vessels were sunk in that channel by order of Governor Letcher, of Virginia, is inadmissible, because the obstruction of such channel without authority of the United States, would be criminal, and the seizure of plaintiffs’ vessel for such a purpose is lawless.

3. Even if such fact were admissible, it is not of a nature which renders it competent for a witness who had no personal knowledge of it, to testify to it as a matter of public history. Such testimony is within the general rule excluding hearsay evidence.

4. Held further, that the so-called secession ordinance of the State of Virginia, offered in evidence by defendants, was inadmissible, because, 1.

*362There was %o proof connecting it with the seizure. 2. There was no proof that it had been adopted by vote of the people of Virginia, which, by its own terms, was required before it could take effect. 3. No such national sovereignty as Virginia is recognized by governments or known to the law. 4. The ordinance was unlawful and treasonable against the United States, and could confer no lawful authority.

(Before all the Justices.)

Heard, May 24, 1862;

decided, June 14, 1862.

This action was brought by S. A. Swinnerton and Thomas W. Dawson, on a policy of marine insurance. It was tried on the 14th of March, 1862, before Mr. Justice Monobief and a Jury.

It appeared from the testimony produced by the plaintiffs • on the trial, that in September, 1860, they were the owners each of one-sixteenth part of the schooner “Lawrence Waterbury.” On the 7th of that month, S. 0. ¡Nelson effected an insurance with the defendants, of the said two-sixteenth parts of the vessel “ on account of whom it may concern,” for one year from that date; the policy containing the usual exception in favor of the insurers,- that they were warranted “free from loss or expense arising from capture, seizure, detention, or the consequences of any attempt thereat.”

In February 1861, while the vessel was on a voyage from • St. Marks, Florida, to ¡New York, and while the policy was still in full force, she was disabled in a storm at sea, and forced to put into Hampton Roads, where she was stranded (it being thick weather) on the beach, and remained there until about the thirtieth of March, 1861, when the master and wreckers, with great difficulty, succeeded in getting her off and taking her into ¡Norfolk, in Virginia, for repairs.

On April 21st, 1861, while the schooner was undergoing these repairs at ¡Norfolk, sixty or eighty men seized her, broke open her cabins, filled her with stones, took her down about a mile below ¡Norfolk, towards Fortress Monroe, and sunk her in the channel or entrance of the river. The captain of the schooner,- (who was also part *363owner and one of the plaintiffs — Swinnerton,) remonstrated with the men who were engaged in this act, stated to them that he was master, and resisted their proceedings by ordering them to desist and leave, but without effect. The man who was giving orders to the others to throw the stones aboard, and who, Swinnerton testified, appeared “ to be the boss or head man,” paid no attention to the protest and remonstrances of the captain, but merely remarked, “ that the State of Virginia was good for it; ” and when asked by what authority he had possession of the schooner, replied, “that it was by authority of the State of Virginia.” The captain also applied to a lawyer for legal assistance, and to a military man to whom several persons referred him, but could get none. He also applied to see if he could get the vessel up, but could get no satisfaction. “ It was all,” Swinnerton said, “ confusion then in the place. * * * It was a perfect madhouse.” The persons engaged in this work, cut through the schooner’s decks, and put about one hundred tons of stones on board her. A steamer lay alongside her all the time while she was being filled, and, when filled, took her away to the place where she was sunk, as before stated. There was a great deal of cheering and hurraing when she went off. The captain testified further, that he had not violated any law or regulation of the port, and was not notified that he had, nor charged with having done so. The vessel was never recovered. Due notice of abandonment of the vessel to the defendants was served upon them in proper time by the plaintiffs; and due proof of interest in the vessel, and of her loss, was in like manner made and delivered by the plaintiffs to the defendants in Hew York, on May 7th, 1861, the captain of the vessel not being able to leave Horfolk until the 27th of April, 1861.

The whole amount of the plaintiffs’ claim, with interest, was $1,065 f<nr-

The defendants’ counsel moved for a dismissal of the complaint, on the ground that the testimony in connection *364with the history of the times, showed that the seizure and detention of the vessel was by direction or permission of the authorities of the State of Virginia, or of the City of Norfolk, in which case, they alleged, the loss would fall within the exception of the policy, or else it showed that the plaintiffs did not make a proper resistance to the seizure, or a sufficient effort to procure the protection of the authorities.

The Court denied the motion and the defendants excepted.

Andrew C. Morris was then called as a witness, by the defendants. He testified, that about the time of the seizure of the plaintiffs’ vessel, several vessels were sunk in Norfolk harbor by order of Governor Letcher, of Virginia. The witness, on cross-examination, stated that he was not then in Virginia, and had no personal knowledge of the fact testified to by him ; but that he stated it as a matter of public history and general notoriety! The Court thereupon, on the plaintiffs’ motion, struck out this testimony, to which defendants’ counsel excepted.

The defendants’ counsel then offered to read what he called “the Secession Ordinance passed by the State of Virginia” on the 17th day of April, 1861.

The plaintiffs’ objected to the reading of the ordinance as matter of evidence, on the ground that it was immaterial and irrelevant. The Court sustained the objection, but permitted it to be read to fix its date.

It was read accordingly. It purported to be a declaration and ordinance by “ the people of Virginia,” that the union between the State of Virginia and the other States, under the Constitution of the United States of America, was thereby dissolved, and that the State of Virginia, was in the full possession of all the rights of sovereignty which belong and appertain to a free and independent State, and that the Constitution of the United States of America was no longer binding on any of the citizens of Virginia; and the same ordinance further declared, that it should take effect and be an act as of its date when ratified by a majority of the votes of the people of Virginia, cast at a poll, to be *365taken thereon on the 4th Thursday of May, 1861, in pursuance of a schedule to be thereafter enacted.

The protest of the master of the vessel (Swinnerton) made at Hew York, on April 30, 1862, detailing the circumstances of the loss of the vessel, was read in evidence by the defendants. The facts which it alleged or recited are substantially those above stated to have been established by the plaintiffs’' testimony, and nothing more.

This was all the testimony the defendants’ counsel introduced or offered. He then requested the Court to charge the Jury, that if the seizure and detention were by the authorities of the State of Virginia or the City of Horfolk, it was within the exception of the policy, warranting the insurers free from loss or expense in case of seizure or detention, and the plaintiffs were not entitled to recover.

The Court refused to do so, decided that there was no question for the Jury, and directed a verdict for the plaintiffs, to the amount of their claim as proved. The defendants’ counsel excepted; and the Jury found a verdict for the plaintiffs, as directed, for $1,065 fW.

From the judgment entered upon this verdict, the defendants brought the present appeal.

A. C. Morris, for defendants, appellants,

cited, as to the meaning of the word “seizure” and “detention,” 2 Arn. on Ins., 812, and cases cited, Green v. Young, (2 Ld. Raym., 840; 2 Salk., 444,) Hagedorn v. Whitman, (1 Stark., 157,) Black v. Marine Ins. Co., (11 Johns., 292,) Dalgleish v. Brooke, (15 East, 294,) Nesbitt v. Lushington, (4 T. R., 783,) and argued, that the fact that the act was unlawful, with reference to the general government, had nothing to do with the matter, the exception in the policy not being against unlawful seizures, &c., but against all seizures, without qualification. (Powell v. Hyde, 34 Eng. L. & E., 44; 2 Arn. on Ins., 808.) The clause is sometimes restrained by the word “ unlawful.” (McCall v. Marine Ins. Co., 8 Cranch, 59; Olivera v. Un. Ins. Co., 3 Wheat., 183.)

*366Daniel Lord, for plaintiffs, respondents.

I. The loss is within the risks insured against and covered by the terms of the policy.

1. It falls properly within the term “pirates, rovers and thieves.” (3 Kent Com., 303; Brown v. Smith, 1 Dow, 349; Bondrett v. Hentigg, 1 Holt’s N. P., 149; Nesbitt v. Lushington, 4 T. R., 783; 2 Arn. on Ins., 821; Brown v. Smith, 1 Dowl. Parl. C., 349; Dixon v. Reid, 5 B. & Ald., 597; 1 Phil, on Ins., 640, $ 1106; 2 Pars, on Mar. Law, 236.)

2. If not within the perils specially enumerated, it is within the general term “ all other perils, losses,” &c. (2 Arn. on Ins., 846; 2 Pars, on Mar. Law, 236, 252; Naylor v. Palmer, 8 Exch., 739; S. C., 10 Id., 382.)

II. The loss does not fall within the terms of the warranty against “ capture, seizure or detention,” for,

1. It was not a “ capture.” (2 Arn. on Ins., 811, § 303; see also Wheat, on Cap., 52, § 10; 1 Phil, on Ins., 3 ed., 643, § 1108, &c.; Emerigon, [Meredith ed.,] 420; Pars, on Merc. Law, 450; Marsh, on Ins., 495.)

2. It was not a “ seizure.” (1 Phil, on Ins., 643, § 1108; Mellish v. Andrews, 15 East, 13; Carrington v. Merchants' Ins. Co., 8 Peters, 493; Mumford v. Phenix Ins. Co., 7 Johns., 449; Bradstreet v. Neptune Ins. Co., 3 Sumn., 601, 615; Magoun v. New England M. Ins. Co., 1 Story, 165.)

3. Kor was it a “detention.” (2 Pars, on Mar. Law, 247; 3 Kent Com., 303; 2 Arn. on Ins., 817.)

4. Kor was it an arrest or detainment by “ people.” (2 Arn. on Ins., 817; Nesbitt v. Lushington, 4 T. R., 783; Marsh, on Ins., 506; and see Judge Kelson’s charge, in the Case of the crew of the “Savannah.”

III. The exceptions taken by the defendants to the rulings of the Court were properly disallowed.

By the Court—White, J.

There was no error in-any decision or direction of the Justice, at the trial of the cause.

According to the general current of authority on the subject, a seizure, which is a mere act of lawless violence, is not within the exception in the policy upon which the *367defendants rely for a defense. The seizure contemplated by that exception is a seizure by some lawful acknowledged government for some probable cause, sanctioned by the law of nations; Carrington v. Merchants' Ins. Co., (8 Peters R., 516-518,) Smith v. The Delaware Ins. Co., (3 Serg. & Rawle, 74,) Faudel v. The Phænix Ins. Co., (4 Id., 29,) Johnston v. Ludlow, (2 Johns. Cases, 481,) Magoun v. N. E. M. Ins. Co., (1 Story Rep., 165;) and the proof offered by the defendants was insufficient to establish, in this case, any seizure of that character.

The statement of the witness, A. 0. Morris, that at about the time of the seizure of the plaintiff’s schooner, several vessels were sunk in Norfolk harbor by the order of Governor Letcher of Virginia, would not establish a seizure that would constitute a defense to the plaintiffs’ claim, even if the statement had been made upon the personal knowledge of the witness. The office of Governor Letcher, conferred upon him no authority to sink vessels, the only purpose of which could be to destroy or obstruct a harbor, the enjoyment of which, the Court will take judicial notice, belongs to the United States, and to the use of which, with free right of ingress and egress, every citizen of every one of the United States is entitled, under the National Constitution and laws. Such an act of destruction would be criminal, and the seizure of the plaintiffs’ vessel for the purpose of accomplishing it, would be a mere lawless violence.

But, further, the testimony of Mr. Morris was not competent evidence. He testified that he had no personal knowledge of the fact that any vessels were seized or sunk by order of Governor Letcher. He said that he only stated the fact as a matter of public history and general notoriety. This was not admissible. There was no reason for resorting to mere public fame or history for proof of the fact alleged. Neither its nature, nor any special circumstances appearing in the case, rendered such evidence of its existence proper, or would justify its exception from, the general rule, excluding hearsay testimony; and Mr. Morris’ *368testimony was nothing more. It was incompetent evidence, therefore, and was properly excluded.

The proposal of the defendant to give the so-called Secession Ordinance of the State of Virginia in evidence, was equally inadmissible. The ordinance would have been no justification of Governor Letcher’s alleged act, if it had been proved (as it was not) that he had done the act alleged:

First. Because there was no proof that the ordinance, even if it were a lawful act, had any connection whatever with the seizure and destruction of the plaintiff’s vessel;
Secondly. Because the ordinance, by its own terms, was to be of no effect unless it should be ratified by a majority vote of the people of Virginia; and it was not shown, or proposed to be shown, that it was so ratified;
Thirdly. Neither the United States, nor any other nation or government, has acknowledged or recognized any such national sovereignty as “Virginia,” or “The People of Virginia,” and there is none such known to the law of nations or of the United States, or of this State;
And fourthly. Because the ordinance, if it were shown that the plaintiffs’ vessel had been destroyed in pursuance or by virtue of it, was an unlawful, treasonable act against the sovereignty and Oonstitution of the United States; and, being so, instead of giving validity to, or legalizing acts done in obedience to, or in execution of it, only rendered them more unlawful and criminal. The exclusion of it, therefore, as evidence at the trial by the Judge was correct.

There is nothing, then, in this case, either in the testimony admitted, or in that which was offered by the defendant and excluded, that could show the seizure and destruction of the plaintiffs’ vessel to have been a lawful act of an acknowledged government, or public authority, and within the exception of the policy. It was the act of a mere tumultuous, riotous assemblage of unknown persons, coming within the description inf the policy of “pirates, rovers, thieves,” against whom it expressly assures the plaintiffs. (Nesbitt v. Lushington, 4 Term R., 783.)

The judgment must, therefore, be affirmed with costs.

Swinnerton v. Columbian Insurance
9 Bosw. 361 22 N.Y. Super. Ct. 361

Case Details

Swinnerton v. Columbian Insurance
Decision Date
Jun 14, 1862

9 Bosw. 361

22 N.Y. Super. Ct. 361

New York



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