Doug. 1. Galbraith v. Nevil, Doug. 5. in note. Lord Fitzsimmons Kaim's Principles of Equity, 369–375.

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 y. Cornelius to be law, and the whole doctrine, to the extent to which it has been carried in England, flows as a necessary consequence. As between 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 viceadmiralty 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 ad rem judicatam. 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 prize courts. Neutrality is a question incident to that of prize, which can be tried only

V.

Newport Ins
Co.

* 194

V.

*195

Fitzsimmons in a foreign court, because it can only be tried in a Newport Ins. Court of the belligerent captor, and our own courts are Co. the courts of a neutral nation. Courts of prize are courts of the law of nations, and their decisions upon questions arising under the law of nations, are to be *considered as the judgments of domestic courts. The question of neutrality is always expected to be agitated in a foreign tribunal. The underwriters do not take upon themselves the risk of condemnation for want of the neutral character, and it is to protect them from that risk that the warranty of neutrality is inserted. But if the sentence is conclusive to prevent them from all chance of recovering the property, and not conclusive in their favour against the claim of the assured, the warranty of neutrality would afford them no protection from the risk against which it was the understanding of the parties that they should be protected.

The counsel then went into an èxamination of the cases of Rapalje v. Emory, 2 Dall. 51. 231. Penhallow v. Doane, 3 Dall. 85. 88. 116. Vasse v. Ball, 2 Dall. Vandenheuvel's Case, 2 N. Y. Cases in Error, 226. and Maley v. Shattuck, 3 Cranch, 488. to show that the general inclination of the courts in this country was in favour of the conclusiveness of a foreign sentence.

270.

They also examined the cases of Bernardi v. Motteux, Doug. 575. Barzillai v. Lewis, Park, 358. Salouci v. Woodmas, Park, 360. Geyer v. Aguilar, 7 T. R. 681. Christie v. Secretan, 8 T. R. 192. Kindersley v. Chase, Park, 363. (0). 5th edit. Lothian v. Henderson, 3 Bos. & Pull. 499. Baring v. Royal Ex. Ins. Co., 5 East, 99. Mayne v. Walter, Doug. 363. Pollard v. Bell, 8 T. R. 434. Bird v. Appleton, 5 T. R. 562. Price v. Bell, 1 East, 663. and Bolton v. Gladstone, 5 East, 155. not only to show how far the doctrine has been extended in England, but to prove by the declarations of the judges that the principle, as applied to insurance cases, was adopted and undisputed before our separation from Great Britain.

3. The condemnation was the consequence of the improper act of the master, for which the underwriters are not answerable.

Underwriters are not liable for a loss proceeding from negligence or misconduct of the master, unless it amount

to barratry. Park, 24. 1 Emerigon, 364. 373. *401. Fitzsimmons 441. 2 Valin, 79. 7 T. R. 160. 4 Dall. 294. and the case of Gray v. Myers, MS.

Argument, in reply.

1. The master of the vessel made no attempt to enter Cadiz after notice. He never had the power, because he never had the possession of his vessel after the warning. An attempt consists of an act as well as of an intent. But here there is evidence of an intent only. All the cases cited show some act done with the intent to enter.

2. As to the question of conclusiveness; all the cases cited from 4 and 7 Co., Carthew, and 2 Burrow, were domestic sentences. The case cited from Bull. N. P. and The Theory of Evidence, is of no authority. It does not appear when, nor where, nor by whom, it was decided. The book is anonymous, and refers only to the case of Hughes v. Cornelius, 2 Shower, 232. which does not support it. The case of Fernandes v. De Costa is not against us. There the sentence was supported by an answer in chancery of the plaintiff, and left to the jury by Lord Mansfield, with the other evidence; and the plaintiff was permitted to give evidence to show the ship was 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.

He did

*3. No words of the master could amount to such conduct, as would exonerate the underwriters. no act whatever.

Newport Ins
Co,

February 8.

MARSHALL, Ch. J. (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 The vessel was a voyage from Charleston to Cadiz.

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 viceadmiralty 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 warran ty 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 case 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 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 de

so, in a direct breach and violation of the blockade there- Fitzsimmons by 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 ship warranted to be American is impliedly warranted to conduct herself during the voyage as an American, and that an attempt to enter a blockaded port, knowing it to be blockaded, forfeits that character.

This position cannot be controverted.

It remains, then, to inquire, whether the sentence proves the brig John to have violated the laws of blockade; that is, whether the cause of condemnation is alleged in such terms as to show that the vessel had forfeited her neutral character, or in such terms as to show its insufficiency to support the sentence.

The fact of clearing out for a blockaded port, is in itself innocent, unless it be accompanied with knowledge of the blockade. The clearance, therefore, is not considered as the offence; the persisting in the intention to enter that port, after warning by the blockading force, is the ground of the sentence.

Is this intention (evidenced by no fact whatever) a breach of blockade? This question is to be decided by *a reference to the law of nations, and to the treaty between the United States and Great Britain.

Vattel, b. 3. s. 177. says, "All commerce is entirely prohibited with a besieged town. If I lay siege to a place, or only form the blockade, I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry any thing to the besieged, without my leave."

The right to treat the vessel as an enemy is declared, by Vattel, to be founded on the attempt to enter, and certainly this attempt must be made by a person knowing the fact.

But this subject has been precisely regulated by the treaty between the United States and Great Britain, which was in force when this condemnation took place. That treaty contains the following clause:

"And whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded or invested; it is agreed that every vessel so circumstan

V.

Newport Ins.

Co.

* 199